(dissenting). In my view the majority has not correctly applied the well-settled law of Ohio, and I respectfully dissent.
The rule denying recovery in a case like the present one was clearly established by the Supreme Court of Ohio in Capelle v. Baltimore & Ohio R. R. (1940), 136 Ohio St. 203. The court held:
“In general, a person who drives, or is driven, into the side of a railroad train standing or moving over a grade crossing cannot, in the absence of special circumstances rendering the crossing peculiarly hazardous, recover from the railroad company for injuries received thereby.” (Italics mine) (Syl. 2)
In Capelle the railroad was engaged in a switching operation in which a boxcar had blocked a grade crossing. Plaintiff was a passenger in the automobile which collided with the boxcar. The accident happened on a dark night *158and there were traces of mist and fog in the air. The driver of the anto was familiar with the crossing. The court further held:
“* * * [T]he existence of weather conditions tending to diminish visibility does not alter the rule.” Id. at 207.
The majority states that the negligence of the driver of the auto may not be imputed to the passengers under Ohio law. There was no such issue in the present case. On the contrary, the railroad contended that the negligence of the driver was the sole proximate cause of the collision.
In Capelle the Supreme Court of Ohio held that the negligence of the driver was the sole proximate cause of the collision as a matter of law. The court said:
“* * * [T]he conclusion is inescapable that, as a matter of law, Roberts, the driver, was negligent and such negligence was the proximate cause of appellant’s injuries.” Id. at 210.
The majority states that the boxcar “had been left stopped over the crossing without any necessity for this being done.” The undisputed proof showed that the railroad was engaged in a switching operation, in the course of which a boxcar blocked the crossing for not more than two or three minutes. This ruling of the majority conflicts with Capelle, where the crossing was blocked for twenty minutes, and the court approved it. The Supreme Court of Ohio (in Capelle) said:
“Undoubtedly the train had a right to occupy the crossing for legitimate business purposes, and was placed in the position best adapted to accomplish the work to be performed in conformity with standard railroad practice.” Id. at 210.
Furthermore, the blocking of the crossing was held in Capelle to be merely a condition and not a cause of the collision. In its fourth syllabus, the court held:
“Where a motor vehicle is run into a train which has occupied a crossing for a period of time in excess of the limit prescribed by statute or ordinance, such occupancy is generally to be regarded as a condition only, and not as a cause of the collision.”
*159The driver of the auto in our case violated the Ohio assured clear distance statute, Section 4511.21, Revised Code. He was guilty of negligence as a matter of law. Capelle v. Baltimore & Ohio R. R., supra.
The driver also violated Section 4513.15, Revised Code, relative to lights, which required him to “use a distribution of light or composite beam directed high enough and of sufficient intensity to reveal persons, vehicles and substantial objects at a safe distance in advance of the vehicle. * * *” Had he complied with this statute, he surely should have been able to see a boxcar, which was certainly a substantial object. It is not our concern that the Ohio courts have adopted the “strictest” construction of their safety statutes. This is the province of the state courts whose decisions we are supposed to follow in a diversity case. Erie R. R. v. Tompkins (1938), 304 U. S. 64, 58 S. Ct. 817, 82 L. Ed. 1188.
Capelle was followed in Canterbury v. Pennsylvania R. R. (1952), 158 Ohio St. 68, in an opinion written for the court by the late Judge James Garfield Stewart.
Another departure from the holdings of the Supreme Court of Ohio is the ruling of the majority that the question of whether the grade crossing was so “peculiarly hazardous” as to require extrastatutory warnings is for the jury to decide.
The highway in the present case was paved to a width of eighteen feet and was a straight, level road for a distance of at least six hundred feet in the direction the auto was traveling as it approached the crossing. The evidence in this case is certainly not sufficient to permit a jury to speculate as to whether the crossing was “peculiarly hazardous.”
The rule in Ohio was established in Hood v. New York, Chicago & St. Louis R. R. (1957), 166 Ohio St. 529, where the court held:
“A railroad is under no duty to provide extrastatutory warnings at a grade crossing, where such warnings are not required by any order of the Public Utilities Commission, if there is no substantial risk that a driver in the exercise *160of ordinary care may be unable to avoid colliding with a train that is being operated over the crossing in compliance with statutory requirements.” (Syl. 6)
“Where reasonable minds cannot conclude that there is such a substantial risk, it is error to permit a jury to consider whether a railroad had a duty to provide extra-statutory warnings.” (Syl. 7)
The court said:
“In determining what, in addition to compliance with statutory and commission regulations, the exercise of ordinary care may require of a railroad at a grade crossing, the railroad should be able to assume that those who drive over the railroad’s ‘right of way’ at that crossing will do so in the exercise of ordinary care.” Id. at 535-536.
In the present case the driver of the auto was not in the exercise of ordinary care. He did not appeal from the judgment of the district court dismissing Ms action for personal injuries. The railroad was not required to anticipate that a negligent driver would violate the statutes of Ohio and drive into the side of a boxcar.
Hood was followed by our court in Carufel v. C. & O. Ry. (1961), 286 F. 2d 193, in an opinion written by Judge Cecil.
Hood was also followed by two Ohio appellate decisions, both of which held as a matter of law that there was not sufficient evidence that the crossing was unusually hazardous so as to permit the issue to go to the jury. Easterwood v. New York, Chicago & St. Louis R. R. (1958), 108 Ohio App. 425, and Gigliotti v. New York, Chicago & St. Louis R. R. (1958), 107 Ohio App. 174.
Actually, the negligent driver of the automobile needed no statutory or extrastatutory warning of the existence of the crossing because he had lived in the little town of Xenia since he was nine years of age and was familiar with it. He was thirty-four years old at the time of the accident.
Prior to the accident the driver had visited four taverns in Xenia between the hours of eight o’clock p. m. and one o’clock a. m. He admitted drinking oMy beers, but *161did not remember how many. One of his companions named Butts admitted drinking eleven beers. All of the passengers had been drinking. The driver’s memory was vague in many other particulars. The driver left the last tavern at about one o’clock a. m. He estimated his speed at 25 to 35 miles an hour. He did not see anything ahead of bim until an instant before he collided with the boxcar.
As stated in Hood, there was no duty on the part of the railroad to anticipate that a negligent driver would collide with a large boxcar which was not moving at the time.
Summary judgment may be granted when viewing the evidence in the light most favorable to the plaintiffs, the District Judge would have been required to direct a verdict in favor of the defendant if the case had gone to trial before a jury. Wilcox v. Transamerican Freight Lines, Inc. (6th Cir. 1967), 371 F. 2d 403, 405; Aetna Ins. Co. v. Loveland Gas & Elec. Co. (6th Cir. 1966), 369 F. 2d 648.
The testimony of the driver and of all important witnesses is contained in depositions. We cannot assume that they will testify differently if the case is retried. In my opinion, considering all the evidence in the light most favorable to the plaintiffs, reasonable minds could reach but one conclusion, namely, that the driver was negligent and his negligence was the sole proximate cause of the collision. Capelle v. Baltimore & Ohio R. R., supra.
In Ohio, the Supreme Court has held:
“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.” Syl. 8, Peters v. B. & F. Transfer Co. (1966), 7 Ohio St. 2d 143.
I would affirm the judgment of the District Court.