dissenting.
For many years this court and a host of other state courts have recognized a difference in the nature of the duty owed by a railroad company to motorists in “blocked crossing” cases versus “approaching train” cases. The long line of Arizona cases beginning with Doty v. Southern Pac. Co., 59 Ariz. 449, 129 P.2d 991 (1942), hold that the only duty a railroad owes to the traveling public when it blocks a crossing is to provide an adequate warning. Until the court’s decision today that has been the consistent and often repeated rule for “blocked crossing” cases.
The court now maintains that the Doty line of cases was impliedly overruled by our decision in DeElena v. Southern Pac. Co., 121 Ariz. 563, 592 P.2d 759 (1979). The court has clearly erred in its reading of DeElena. Both DeElena and the case it relied on, Southern Pacific Railroad Co. v. Mitchell, 80 Ariz. 50, 292 P.2d 827 (1956), are “approaching train” cases. The distinction between the “blocked crossing” and approaching or moving train cases was explained in Mitchell:
Defendants unwarrantedly place great reliance upon four cases decided by this court which set forth the extent of the duty of reasonable and adequate warning which a railroad company owes a motorist once a train is actually upon and blocking the crossing. These are Doty v. Southern Pac. Co., 59 Ariz. 449, 129 P.2d 991; Malin v. Southern Pac. Co., 62 Ariz. 126, 154 P.2d 790; Cope v. Southern Pac. Co., 66 Ariz. 197, 185 P.2d 772; Atchison, T. & S.F. Ry. Co. v. Renfroe, 77 Ariz. 28, 266 P.2d 745. Those cases stand for the proposition that once a train has occupied a highway crossing no duty arises for the railroad company to give any additional notice of the presence of the train upon the crossing, for the train itself is adequate warning to the approaching traveler. It is to be noted that this proposition is not applicable to the case here, for obviously this is not a “blocked crossing” situation. Simply enough, the train, had not so occupied the crossing as itself to give adequate warning of its presence where, as here, the lead boxcar and the automobile reached the intersection at the same moment.
80 Ariz. at 58, 292 P.2d at 832.
Both in DeElena and Mitchell the trains were moving across a street, and the rule of law applicable was that the railroad company must operate the train using reasonable care. The railroad is not free to rely solely on its warning devices, but it must use reasonable care in running the train across a street or highway.
The distinction between the two types of situations at a railroad crossing has long been recognized in this state and the great majority of jurisdictions. A stationary train which is blocking a road crossing is passive and usually plainly visible. The presence of the train, at rest, and warning devices have been considered adequate notice to the public. The moving train has presented a different problem, and the cases have recognized the difference and fashioned a different rule.
The Wisconsin case cited in the majority opinion, McLaughlin v. Chicago, M., St. P. & P. Ry. Co., 31 Wis.2d 378, 143 N.W.2d 32 (1966), is a blocked crossing case, but it is not authority against the Arizona rule. The McLaughlin trial judge found that the railroad was negligent because the railroad crew left the railroad crossing blocked without any warning signals to warn of the presence of the cars and the crew went off to have supper.
The Wisconsin Supreme Court concluded that there was no interest to the railroad *131that was reasonably served by leaving the freight cars on the crossing without any warning to the traveling public. The railroad crew left the rail cars blocking the crossing longer than necessary to complete the switching operation so the crew could go to supper. Under such circumstances, the appellate court concluded that the trial court was correct in determining that the railroad was negligent as a matter of law. The factual situation is aptly portrayed by the following from the opinion:
The crossing where the collision occurred is near Crivitz. Highway 141, a principal highway in that area, runs north and south and the track intersects it at right angles. The Beemster automobile struck one of a string of freight cars which were standing still obstructing the crossing. It was dark; there were occasional snow flurries; the automobile approached from the south at about 45 miles per hour. The car obstructing the highway was a flat car, with a crane mounted on it. Plaintiff saw it first, when it was a little more than one hundred feet ahead. There was no automatic signal, flagman or fusee at the crossing.
143 N.W.2d at 35.
Under our previous case the decision in McLaughlin would be the same in Arizona because the railroad did not provide adequate warnings at the crossings.
Under the facts in the case at issue, there were adequate warnings in place at the crossing, at least one or more cars had stopped for the train, the train had been on the crossing for about ten minutes, which is within the fifteen minutes allowed by A.R.S. § 40-852, and the plaintiff ran into the side of one of the rail cars. Under the long standing rule in this state, the trial judge and the court of appeals ruled that the railroad had not breached its duty to the public because it had provided reasonable and adequate warning that the train was blocking the crossing.
Apparently the court today believes that a railroad may not block a street or highway if it can avoid it. The only area of possible fault suggested by the court in this case is that the railroad could have moved the train and not blocked the crossing. This new rule now requires the railroad to face liability anytime it blocks a highway crossing. Of course the reason for blocking the highway can be explained to a trial jury, and the jury will decide whether such action was reasonable. The ruling in this case will subject railroads to great confusion about what their rights and duties are in blocking street and highway crossings. Until today the rule had been that the railroad might block a highway crossing for up to fifteen minutes. A.R.S. § 40-852. Although a statute is usually thought to represent the public policy of the state, the court has chosen to adopt a different policy by, in effect, saying that a railroad may be found to be negligent if it blocks a highway crossing for any period of time.
Our previous cases, outlining the duty of the railroad in blocked crossing cases, were good law and sensible. Under those prior decisions the facts of this case show that the railroad did not violate its duty to the plaintiff; therefore, the decision of the Court of Appeals was correct, and the judgment of the trial court should be affirmed. I dissent from the opinion of the court.