(concurring).
I concur in affirming the judgment but upon a different ground: that viewing the evidence even in the light most favorable to plaintiff, the negligence of Mr. Gregory was the sole proximate cause of the collision. I don’t see how reasonable minds could find to the contrary. He approached this expanse of at least eight railroad *118tracks at a very slow rate of speed, so that' at any instant he could have stopped his car within a very few feet. There ’was no reason why he could not have seen the train which was coming from the north. Under the old and well-established rule, this impales him upon the horns of a dilemma: he either failed to look; or he looked and failed to heed.1
The train crew had the right to assume that Mr. Gregory would stop and would not proceed in front of the train, until the time something occurred to warn them to the contrary. Particularly in view of his very slow speed, this would not he until he got quite close to their track, at which time the train was practically upon him. It is contrary to the generally known laws of physics and common sense to expect the train, with its great weight and momentum, to stop within the short distance available after the instant it should have become apparent that Gregory was not going to stop. After that point was reached, there is nothing the crew could have done to avoid the collision. And this is true whether the train was travelling fast or slow and whether the crew saw him or not.
The reason for this concurrence is that 1 am not in accord with the view that the plaintiff failed to make a prima facie case as to negligence of the railroad on grounds (b) failure to keep a proper lookout, and (d) absence of a flagman, as set forth in the main opinion.
With respect to (b), the fact that one vehicle is driven into another on the highway should be sufficient to raise a jury question as to whether the operator was keeping a proper lookout, absent any other explanation. I do agree that under the facts shown, failure to keep a lookout could not have been a proximate cause of the collision.
In regard to (d), the fact is that the railroad had made its own determination as to the need, and had provided a flagman at the crossing. This is shown by Mr. Gregory’s evidence that he had observed such flagman there “lots of times.” This presumably was at any time he happened to cross. No effort was made to show otherwise. I deem that a sufficient showing from which reasonable minds could draw the inference that the flagman is both necessary and customary. This would establish a prima facie case for the plaintiff on that issue. To require her to go any further would cast an unreasonable burden upon her; whereas if there is any reason to justify not having the flagman there at the particular time, that could best, and should be shown by the railroad in whose hands the proof of facts anent rail and vehicular traffic and hazards at the cross*119ing lies. It is not questioned that there is evidence that the watchman was not on duty. I agree with the rule that where a flagman is usually maintained, which fact is known -to the traveler, in approaching the crossing he may take some assurance of safety from the fact that the flagman is not there.
I think that the plaintiff made a sufficient showing to go to the jury as to the negligence of the railroad on the two grounds just mentioned.
However, on the issue as to Mr. Gregory’s negligence being the sole proximate cause of the collision: it is to be kept in mind that the assurance which he could have taken from the absence of a flagman is only that which could be taken by-a reasonable and prudent person under the circumstances. He was not thereby bereft of his reason and senses and permitted to go headlong onto the railroad tracks without using due care to observe for and take heed of this train which was in plain sight and too close to stop and avoid striking him, whether the train crew saw him or not. He obviously failed to observe the barest modicum of care in that regard. Therefore his negligence must be deemed to he the sole proximate cause of the collision and the trial court properly directed the verdict against the plaintiff.
. Abdulkadir v. Western Pac. R. Co., 7 Utah 2d 53, 318 P.2d 339 and cases therein cited.