(dissenting). The verdict and judgment in the amount of $111,900.00 ought not to stand because (1) plaintiff was negligent as a matter of law and (2) the trial court erred in submitting the issue of last clear chance to the jury.
Plaintiff was a girl fifteen years and ten months of age. She was a junior in high school. She was a good student getting “A” and “B” grades and ranking 20th in a class of 93. There was no claim of any physical or mental impairment. She had lived in Uniopolis all of her life. Her home was located only about 2% blocks from the grade crossing at which the ■ accident occurred. She was “quite familiar” with the crossing. She had ridden a bike since she was seven or eight years old. She had ridden her bike over the crossing for three or four years before the accident. She had received traffic safety instruction both at home and in school. She had seen movements on the main track and the spur track which was also known as the elevator track.
Cross-arm warning signs were located on both sides of the tracks in plain view for approaching traffic. The signs were equipped with automatic red flasher lights and a bell. On the crossbars were written the words “Railroad Crossing.” On one sign was written “Two Tracks” and *127on another “Stop on Red Signal.” Plaintiff understood what the signals meant when they started to flash.
The switch was located 429 feet south of the crossing. The highway was paved and was straight. It was 20 feet wide but, between the main track and the spur track, the pavement was 29 feet wide. The distance between the innermost rails of the main track and spur track was 18% to 19 feet. The grain elevator where the cars were to be spotted was located adjacent to the crossing on the northeast side of it where the spur track dead-ends.
The view south of the crossing was unobstructed for at least 10 feet east of the crossing. The accident happened on a Sunday afternoon of a clear sunny October day.
In the switching operation, three cars, one loaded and two empties, were cut off the main track and “dropped” into the elevator track. The power units, consisting of three diesel engines, proceeded north on the main track and came to a stop blocking the crossing in order to prevent vehicular traffic from crossing while the cut of cars was being spotted at the grain elevator. The cut of cars proceeded north on the spur track at some distance to the rear of the power units and at about six miles an hour, but the speed of the cut had been reduced by the brakeman to about two miles an hour at the time of the accident. The cars came to a stop about 23 feet 4 inches from the place where the accident took place.
Plaintiff and a girl friend, Melanie, had been riding their bikes that afternoon. Plaintiff left Melanie talking with a boy named Jimmie Evans who had been riding a power mower. Plaintiff approached the crossing on her bike. The signal lights were flashing at the time. She testified on direct examination that she did not remember stopping before she entered the crossing. She said “I don’t think I did.” On cross-examination she was asked:
“Q. Well now as you came out of that elevator driveway toward the crossing, did you stop before you went onto the crossing? Did you stop your bike?
“A. Gee — I don’t really believe I stopped. I may have slowed down.”
*128She rode her bike over the spur track a distance of four or five feet west of it. Her testimony on direct examination was:
“Q. Where did you finally come to a stop?
“A. Well, I was off the roadway, oh a few feet in front of the elevator track. I — maybe four or five feet after I crossed over the track.’’
She was not off the roadway but on the extended width of the road between the tracks.
On cross-examination she testified:
“Q. So then you went up onto the crossing and stopped your bicycle someplace — between the tracks, was it?
“A. Between the elevator track and the main track, yes.”
She further testified that she was closer to the elevator track than to the main track, but she believed she was clear of the elevator track.
She further testified that she remained stopped for thirty seconds or a minute before the accident happened or maybe longer, but she did not think it was any less than thirty seconds.
At the time she stopped, she said the train on the main track was about in the middle of the road and had not come to a stop.
At no time prior to her stopping, or after she stopped, did she look south down the spur track where she could have seen the approaching cars proceeding slowly in plain view. She testified that when the train had stopped she was also stopped and was straddling her bike for about a minute when she heard a shout or yell which she thought was from the cab of the train. She turned her head that way (north) and was then hit.
On cross-examination she testified:
“Q. All right. Did you look in either direction along the elevator track before you went on it?
“A. Well, I could have and it’s — it is possible that I really could have looked down there, but I don’t remember looking.
“Q. You not only could have, you should have, isn’t that correct?
*129“A. I should have, yes.”
"When plaintiff had stopped her bike between the tracks, her girl friend, Melanie, followed her to the edge of the crossing and was in the best position to see what happened.
Melanie testified that there was sufficient room between the two sets of tracks for plaintiff’s bike and trains to clear; that plaintiff had stopped and was straddling her bike; that the flashers were operating; that if plaintiff had looked to the south she could have seen the approaching cut of cars.
Melanie testified on cross-examination as follows:
“Q. Now, while Diane was standing between the tracks facing west did you see her move her head at all before the accident?
“A. Yes; Jimmie called to her and she looked over her right shoulder at him and backed up.
<<# * *
“Q. How many steps back did she take before the collision occurred?
“A. I don’t know; I don’t. I would say three.
“Q. At least several steps?
“A. Three, around three, yes.
“Q. All right, so the rear half of the bike was out behind her, is that right?
“A. That’s true.
««# # #>>
Melanie further testified that if plaintiff had not backed up the cars would have gone past without hitting her. Melanie did not see the cut of cars until they were right on top of plaintiff.
Jimmie was following Melanie on his power mower and talking to her at the same time. He testified that he saw the train entering the crossing and a crewman waiving at plaintiff.1 He did not state where the cut of cars were at the time he claimed the crewman waived. It seemed to *130Jimmie that plaintiff “might have moved back just a little bit.” In describing how quick the accident happened he said “It was awful fast. It seemed like she was there and Boom! And then she wasn’t.” He further testified “Well, if she had noticed them (box cars) before she went on the crossing she wouldn’t have gone on the crossing” and “If she would have noticed the box cars she would have moved forward to clear it too.”
Jimmie did not see the cut of cars until they were either on the crossing or a car length away.
Ohio law requires the traveler upon a public highway to look and listen for the approach of trains before proceeding over a grade crossing, and he must look and listen at a place and in a manner that will make the looking and listening effective. One cannot “claim the right to recover simply because he has looked and did not see, if the conditions are such that, had he looked, he must have seen.” Detroit, Toledo & Ironton R. Co. v. Rohrs, 114 Ohio St. 493, 500. We followed this case recently and applied the rule in Allen v. New York Central R. Co. (6th Cir. 1968), 397 F. 2d 257, in which we affirmed an order of the District Court granting summary judgment in favor of the railroad. Other pertinent Ohio cases are: North v. Pennsylvania R. Co. (1967), 9 Ohio St. 2d 169 (summary judgment); Boles v. Baltimore & O. R. Co. (1959), 168 Ohio St. 551; Woodworth v. New York Central R. Co. (1948), 149 Ohio St. 543; Patton v. Pennsylvania R. Co. (1939), 136 Ohio St. 159; Pennsylvania R. Co. v. Rusynik (1927), 117 Ohio St. 530, 56 A. L. R. 538; Toledo Terminal R. Co. v. Hughes (1926), 115 Ohio St. 562; New York, C. & St. L. R. Co. v. Kistler (1902), 66 Ohio St. 326. Other decisions of our court are: Newcomb v. Baltimore & O. R. Co. (6th Cir. 1965), 352 F. 2d 406; Anderer v. Baltimore & Ohio R. Co. (6th Cir. 1962), 300 F. 2d 14; Carter v. Pennsylvania R. Co. (6th Cir. 1949), 172 F. 2d 521; Detroit, Toledo and Ironton R. Co. v. Yeley (6th Cir. 1947), 165 F. 2d 375; Baltimore & O. R. Co. v. Joseph (6th Cir. 1940), 112 F. 2d 518; cert. den., 312 U. S. 682, 61 S. Ct. 551, 85 L. Ed. 1121, rehearing den. 312 U. S. 714, 61 S. Ct. 710, 85 L. Ed. 1144.
*131In Ohio, a minor is liable for his torts. Wery v. Seff (1940), 136 Ohio St. 307. A minor may be negligent, con-tribntorily negligent, and also assume the risk of Ms injury as a matter of law. The rule is stated in Englehardt v. Phillips (1939), 136 Ohio St. 73, where the court beld that a boy between eleven and twelve years of age, who was a fairly good swimmer and diver, assumed the risk of bis injury as a matter of law. Judge Hart in writing the opinion of the court said:
“While children are not chargeable with the same amount of care as persons of mature years, they are re-qmred to exercise ordinary care to avoid injury to themselves, such care as applied to them being that care wMch children of like age, education, experience, and ordinary prudence are accustomed to exercise under the same or similar circumstances. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Grambo, Sr., Adm’r., 103 Ohio St. 471, 20 A. L. R. 1214; Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St. 283, 290, 15 Am. St. Rep., 596, 3 L. R. A. 385. It is true, as claimed by the plaintiff, that contributory negligence is not an issue in this case, but the doctrine of assumed risk is in the ease as applied to the plaintiff, considering bis age, education and experience. Where the nature and extent of the risk are fully appreciated and voluntarily incurred, there is assumption of risk. Hunn v. Windsor Hotel Co., 119 W. Va. 215, 193 S. E. 57.
“If one is of mature age, or of sufficient age to know and appreciate the danger that attends bis act, he cannot complain of an injury sustained by reason of a risk voluntarily assumed. He cannot go into a place of danger which be appreciates and understands, and recover if be is injured thereby. The conduct of a child ‘is to be judged by the standard of behaviour to be expected from a child of like age, intelligence and experience. A child may be so young as to be mamfestly incapable of exercising any of those qualities of attention, intelligence and judgment wMch are necessary to enable him to perceive a risk and to realize its unreasonable character. On the other band, it is obvious that a child who has not yet attained bis ma> *132jority may be as capable as an adult of exercising the qualities necessary to the perception of a risk and the realization of its unreasonable character.’ 2 Restatement of Law of Torts, 743.
“Generally speaking, it may be assumed that a person of whatever age is able to appreciate the obvious risks incident to any sport or activity in which he may be able to engage with intelligence and proficiency and must act accordingly. If a child is able to play baseball capably, he must know that there is danger of being hit with ball or bat; if he is able to engage proficiently in the game of football, he must know that in playing the game there will occur violent physical contacts which may result in injury to him; if he is a proficient swimmer and diver, he must know of the danger of drowning and the danger of harm incidental to the use of diving apparatus. Murphy, an infant, v. Steeplechase Amusement Co., Inc., 250 N. Y. 479. That the plaintiff in the instant ease knew of the condition of the tower platform in question is shown by the fact that he testified fully upon that subject. Since the plaintiff in this case was shown to be a proficient swimmer and diver and had had much experience in the use of the swimming pool and its diving apparatus, can it be said that he was so immature that he could not appreciate the insecurity of standing or walking upon or diving from a platform which was obviously slippery when wet, and that a slip or fall from such platform might result in more or less injury to him? We think the record in this case warrants the conclusion that he had the ability to appreciate this risk. See Turner v. City of Moberly, 224 Mo. App. 683, 26 S. W. 2d 997; City of Evansville v. Blue, 212 Ind. 130; City of Menard v. Coats, Tex. Civ. App., 60 S. W. 2d 831; Swan v. Riverside Bathing Beach Co., 132 Kan. 61, 294 P. 902. # # #99
See also: Cleveland, C., C & St. L. R. Co. v. Gahan (1905), 1 Ohio Cir. Ct. R., N. S., 205; Bailey v. Erie R. Co. (D. C. N. Ohio 1956), 143 F. Supp. 351.
The record in this case establishes that plaintiff was a good student and an experienced bicycle rider who was *133familiar with the crossing, and had passed over it many times. She was not so immature as not to appreciate the danger of driving over the crossing without looking for the approach of trains, and that her failure to look might result in injury to her. It is clear that she did have the ability to appreciate the danger and to avoid it.
The classic case in Ohio on last clear chance is Cincinnati, H. & D. R. Co. v. Kassen (1892), 49 Ohio St. 230, 16 L. R. A. 674. In that case, a passenger on a train fell off the platform of the car in which he had been riding onto the track and was rendered unconscious. The railroad knew of this and did nothing to rescue him before he was struck and killed by another train. It is obvious that the decedent was in a position of peril from which he could not extricate himself, and there was no question but that the defendant knew it. Although he was negligent in falling off the platform, his negligence had ceased when he was rendered unconscious on the ground and could not help himself. The railroad was negligent when it failed to exercise ordinary care after it became aware of his peril.2
In Cleveland Ry. Co. v. Masterson (1932), 126 Ohio St. 42, 92 A. L. R. 15, Judge Jones, who wrote the opinion for the court, said:
“* # * where the plaintiff and defendant both are negligent and the former’s negligence places him in a perilous situation from which he cannot escape, the plaintiff may still recover, even though he negligently placed himself in such situation, if the defendant did not exercise ordinary care after discovery of his peril.” (Italics added).
The rule is stated in Brock v. Marlatt, Adm’x (1934), 128 Ohio St. 435, as follows:
*134“The last clear chance rule has no application to any situation except where the injured party through his own negligence, has placed himself in a position of peril. The doctrine pre-supposes the antecedent negligence of the plaintiff, and an instruction on such issue is not proper where the negligence of the defendant and contributory negligence of the plaintiff are concurrent. Cleveland Ry. Co. v. Masterson, 126 Ohio St. 42, 92 A. L. R. 15, and Pennsylvania Co. v. Hart, 101 Ohio St. 196, approved and followed.) ”
On page 439, Judge Matthias, who wrote the opinion for the court, stated:
“The record discloses that the decedent’s act in crossing the highway and the approach of the defendant’s automobile were concurrent acts, and, if negligent, such negligence continued until they came into collision, which collision some of the evidence indicates occurred at least partly as a result of plaintiff’s decedent suddenly reversing his course into the path of the approaching automobile. Without fully reviewing the evidence in the record it is sufficient to say that in so far as the evidence indicated contributory negligence of the plaintiff’s decedent it was continuing and concurrent with the acts of the defendant charged to have been negligent. It had not ceased for a sufficient time prior to the accident to enable the defendant, after she knew of the peril of the decedent, to have avoided the accident, and hence the rule of the last clear chance has no application and its injection into the case is prejudicially erroneous. Pennsylvania Co. v. Hart, 101 Ohio St. 196.”
In Peters v. B. & F. Transfer Co. (1966), 7 Ohio St. 2d 143, the court held:
“* * *
“6. Where a plaintiff, by his own fault, caused himself to be placed in a perilous situation, he may recover under the rule of the ‘last clear chance’ notwithstanding his negligence, if the defendant did not, after becoming aware of plaintiff’s perilous situation, exercise ordinary care to avoid injuring him. (Paragraph one of the syllabus of *135Cleveland Ry. Co. v. Masterson, 126 Ohio St. 42, 92 A. L. R. 15, approved and followed.)
“7. For the doctrine of ‘last clear chance’ to be applicable it must be proved that the defendant became aware that plaintiff was in a position of peril at a time and distance when, in the exercise of ordinary care, he could have avoided injuring plaintiff. (Italics mine.)
“8. Under our law it is just as pernicious to submit a case to a jury and permit the jury to speculate with the rights of citizens when no question for the jury is involved, as to deny to a citizen his trial by jury when he has the right. (Paragraph six of the syllabus in J. C. Penney [Penny] Co., Inc., v. Robison, 182 Ohio St. 626, 100 A. L. R. 705, approved and followed.)”
See also: Drown v. Northern Ohio Traction Co. (1907), 76 Ohio St. 234, 10 L. R. A., N. S. 421.
In the case at bar plaintiff’s negligence had not ceased. She was not in a position of peril from which she could not have extricated herself before the accident happened. She was negligent in riding her bike over the spur track without looking south where the approaching cut of cars was slowly approaching and in plain view. She was negligent in remaining between the spur track and the main track for a period of from thirty seconds to one minué before the accident happened without looking down the spur track. Had she looked, she could easily have averted the accident either by not moving backward or by taking a few steps forward to a place of safety in the 18% foot strip between the spur and main tracks. The cut of cars which struck her was traveling at only two miles an hour at the time of the accident. A person could walk faster than the cars were moving. In such a situation it is unprecedented to claim the benefit of the salutary doctrine of last clear chance.
Jimmie Evans testified that a crewman waved to plaintiff as the power units were proceeding across the highway. He did not testify as to the distance of the cut of cars from the crossing at the time he claimed the engineer waved. The fact is he never looked and did not know.
A state highway patrolman also related a conversa*136tion he claimed to have had with the engineer at the scene of the accident, who was alleged to have told him that he waved and shouted a warning to plaintiff either as the train was approaching the crossing or after it had already stopped and was blocking the crossing. This conversation was not in the patrolman’s written report or in the engineer’s written statement and the patrolman was necessarily testifying from memory, which probably accounts for his vagueness in attempting to remember what was said six years ago. The conversation does not enlighten us as to the distance of the cut of cars from the crossing at the time.
Plaintiff argues from this testimony that the cut of cars could have been stopped by the brakeman in time to have avoided the accident if the engineer had given appropriate signals. The brakeman who was riding on the cut of cars never saw the plaintiff on the crossing. The engineer was not on the cut of cars but was on one of the power units on the main track. He testified that after the power units came to a stop he looked south down the elevator tracks and observed the cut of cars approaching, but at that time no one was within the crossing and it was clear. He later looked down a second time and saw the cut of cars ‘‘practically right on top of her.” He yelled and waived to her and saw her turn to the right and back up and the cars then struck her.
It is claimed that instead of shouting and waving the engineer should have blown the whistle on the train to signal the brakeman on the cut of cars that someone was on the elevator tracks so that the brakeman could apply the brakes and stop the cars. But there was no time to do this as the cut of cars was right on top of plaintiff at the time. Time for reaction would have to be allowed both engineer and brakeman who were on different tracks and, even if the signal had been given by the engineer, the brakeman could have done nothing more than he was doing. He had already applied the brakes so as to stop the cars for spotting at the elevator which was adjacent to the crossing. He brought the cars to a complete stop within about 23 feet 4 inches of the place where the accident oc*137curred. Travelling at a speed of two miles an hour the cars could not have been stopped in less than from one and one-half to three car lengths. Plaintiff offered no proof as to the time when defendant became aware of plaintiff's position of peril in relation to the distance of the cars from the point where the accident took place. This is all important in invoking the doctrine of last clear chance. Peters v. B. F. Transfer Co. (1966), 7 Ohio St. 2d 143, supra.
In ruling on the motion for a directed verdict, and considering the testimony in the most favorable light to the plaintiff, the District Judge said:
“The evidence as to time is very conflicting, but again if we take that in the light that is most favorable to the plaintiff and make various computations in regard to the physical facts that are undisputed in the evidence, there was a minimum of time — in excess of thirty seconds — that the plaintiff was in a position of discovered peril. Now thirty seconds is in some view a very short time; in other places it is a very long time. An ordinary person can cover a lot of ground in thirty second if his mind is on it. A person using reasonable care and prudence, if faced with a dangerous situation, can do perhaps a great deal more than that. There were a number of things, I believe, that could have been done in that interval of time on the part of the defendant to have avoided the accident and they were not done.”
The record does not show that the engineer and brakeman had even thirty seconds but, assuming that they had, it was indeed a very short time for the engineer to have blown the whistle and for the brakeman to have acted and to have stopped the moving cut of cars before plaintiff was struck. As I have pointed out, the brakeman had already applied the brakes and did bring the cars to a stop within 23 feet 4 inches of the place where the accident occurred. He could have done no more than that.
On the other hand, it should be observed that the plaintiff had the same amount of time as did the engineer and brakeman to have averted the injury to herself and could have done so much easier either by not backing up or *138at least by taking a few steps forward in the space between the tracks.
The District Judge was correct in ruling out the issue of wanton misconduct which was injected in the case by plaintiff. There is great difficulty in even finding negligence on the part of defendant much less wanton misconduct which would deprive the defendant of the defense of contributory negligence. Universal Concrete Pipe Co. v. Bassett (1936), 130 Ohio St. 567, 119 A. L. R. 646.
Sympathy for plaintiff’s severe injury weighs heavily in her favor but cannot be considered in determining liability. Under Ohio law, plaintiff cannot recover. She ought not to recover in the federal court.
I would reverse the judgment.
Jimmie made no mention of the crewmen waiving in a statement he gave to his Legal Officer in the Navy which, except for formal parts, was in his own handwriting. His testimony at the trial conflicted materially with his statement.
Later decisions of the Supreme Court of Ohio have limited the doctrine of last clear chance to situations where the defendant actually knew and not merely should have known that plaintiff was in a position of peril. Cleveland Ry. Co. v. Masterson (1932), 126 Ohio St. 42, 183 N. E. 873, 92 A. L. R. 15; Pennsylvania Co. v. Hart, 101 Ohio St. 196; Peters v. B. F. Transfer Co. (1966), 7 Ohio St. 2d 143.