concurring in part and dissenting in part.
' I concur with the opinion of Justice Holmes, but I would add the following:
To sustain a jury finding of wanton misconduct, there must be sufficient evidence showing the failure to exercise any care whatsoever, Hawkins v. Ivy (1977), 50 Ohio St. 2d 114. The facts in this case, however, do not show a total lack of care on the part of Penn Central. Quite the contrary, there was evidence presented that employees of Penn Central had placed fusees on each side of the crossing, and that before proceeding across the track, the train blew its whistle and sounded its bell. There had also been erected a yellow luminescent sign, visible at night, some 220 feet before the crossing to warn travelers of the possibility of a train ahead.
It must be remembered the motorist himself is held to a duty of ordinary care. Appellant, however, testified that even though he was well aware of the presence of the tracks and the sign, he nevertheless proceeded at a speed of 30 to 35 miles per hour, in complete disregard of the sign and tracks ahead. Appellant failed in his duty to travel at a speed which would have enabled him to stop within the assured clear distance ahead. R. C. 4511.21. The presence of the train on the crossing is, absent unusually dangerous circumstances, sufficient warning to the motorist that the crossing is blocked. Accordingly, once a railroad crossing has been preempted by a train, crossbucks or extra-statutory precautions have not been required for the exercise of ordinary care, unless the evidence indicates the crossing is peculiarly hazardous. See, e.g., Capelle v. Baltimore & Ohio Rd. Co. (1940), 136 Ohio St. 203. The jury specifically found, however, the absence of crossbucks at the crossing was not a proximate cause of the accident.
The evidence does not show anything unusually dangerous *219about the crossing itself such as would impose an extraordinary duty on Penn Central to take precautions beyond those statutorily required. The crossing was located on a straight stretch of the road where there was no appreciable obstructing grade, and there was nothing peculiarly hazardous in the way the crossing had been constructed. Furthermore, there is nothing extraordinary in the presence of darkness at the crossing at 2:00 a.m. when the accident occurred; nor does darkness in and of itself denote a peculiar or unusual hazard. The presence of darkness at the crossing is not sufficient to take this case out of the category of simple negligence and place it into the category of wanton misconduct which requires a finding of failure to safeguard against peculiar hazards.
This case is not based on simple negligence. Appellant alleged wanton misconduct on the part of appellees. The majority opinion confuses the standard for a finding of simple negligence, which requires the failure to exercise ordinary care, and the standard for a finding of wanton misconduct, which requires the failure to exercise care beyond the ordinary because of unusually hazardous circumstances.
I fail to see how the majority holds that ordinary care now requires extra-statutory warnings, while at the same time finding Penn Central guilty of wanton misconduct due to the alleged absence of extra-statutory precautions.
According to the majority, “ordinary care would dictate that Penn Central should have taken some affirmative precautions to warn of the hazard. * * * [A] general rule of ordinary care in which all circumstances can be considered when determining the standard of care is more appropriate. Therefore, we hold that a railroad has a duty of ordinary care to protect the safety of motorists. This conclusion modifies prior case law which required extra-statutory warnings only when a crossing was particularly hazardous.” (Emphasis added.) If ordinary care now requires extra-statutory warnings, then Penn Central’s alleged failure to provide extra-statutory warnings would constitute simple negligence, not wanton misconduct.
I realize this accident in which appellant lost his arm perhaps generates sympathy, and I am not immune from feeling compassion for this individual. We must, however, in deciding cases, set our emotions aside and apply the law to the facts of *220the case before us. The fact is appellant in this case failed to exercise ordinary care for his own safety. According to his testimony, he failed to heed the warnings which he admitted were present, namely, the luminescent sign and the presence of the train on the tracks. Undoubtedly, it was for this reason the jury found the absence of crossbucks was not a proximate cause of appellant’s accident. Given such circumstances, what more could Penn Central do short of acting as an insurer for motorists who fail to be vigilant for their own safety?
Holmes, J., concurs in the foregoing concurring and dissenting opinion.