(dissenting). The occupants of the car testified that there were trees along the roadside, but no witness testified that the foliage was sufficiently dense to obstruct the view of the approaching train. There was also testimony as to the presence of a sign board, but no witness undertook to account for the phenomenon of the destruction of the visibility of the train by this board as the automobile approached the track. It occurs to me that we should say, as a physical fact, that the occupants of the car would have seen the train had they looked; therefore, they will not be heard to say that they looked but did not see.
However, the existence of an obstruction to the vision would not lessen the duty to listen. Upon the contrary, it accentuated that duty. No real reason can exist for the failure of the occupants,of the car to hear the train except their absorption in their own affairs and their oblivion to their surroundings, unless, indeed, it was the noise of their own car. This is indicated by appellee’s testimony, which shows that the train did not hit the automobile, but that the automobile ran into the rear end of the engine, or the engine’s tender.
In the ease of St. L., I. M. & S. Ry. Co. v. Coleman, 97 Ark. 442, this court said: “Now, a railroad track is universally recognized as a place of constant danger, and a traveler along a highway, or a path or road used as such, when about to cross a railroad track, is required to look and listen for approaching trains, and must continue to look and listen until the danger is passed. He must look both ways, up and down the track. St. L. & S. F. Ry. Co. v. Crabtree, 69 Ark. 134. The court should always declare this duty on the part of a traveler as a matter of law, and only in exceptional cases is it proper to submit to the jury the question whether or not failure to exercise such caution constitutes negligence. Tiffin v. St. L., I. M. & S. Ry. Co., 78 Ark. 55.”
It occurs to me that the application of the doctrine of the case quoted would require that a verdict be directed for the railway company.
It is said, however, that the jury was warranted in finding that the gong was not sounding as appellees approached the track. It was shown that the gong had been inspected only a few days before the collision, and had been found to be in good working order, and Mr. Guest admitted that he went to the crossing the afternoon of his injury to see if the gong sounded when a train passed, and that it did sound when :a train passed. It is not at all probable that either Mr. Guest or Mr. Brewer would have heard the gong when they failed to hear the train. If the railway company was under any duty at all to erect and maintain the gong — and it was under no such duty — the undisputed proof shows that this duty was discharged by the inspection which had recently been made.
It is said in the majority opinion, however, that the silence of the gong was, in a measure, such an invitation to cross and an assurance of safety in crossing, that appellees might, in a measure, relax their vigilance in crossing, so that a question of fact was made whether they were guilty of contributory negligence as a matter of law. This question was presented to the Supreme Court of Kansas in the case of Jacobs v. A. T. & S. F. Ry. Co., 154 Pac. 1023, and the answer there given appears so conclusive of that question, that I quote from it as follows: ‘ ‘ The vital question in this case is: Did the failure of the electric bell to ring relieve the deceased of the obligation to look and listen before attempting to cross the track? The plaintiff seeks to have the rule in McClain v. Railway Co., 89 Kan. 24, 130 Pac. 646, Ann. Cas. 1914 C, 699, applied in this case. There this court said: £ Ordinarily if a trav- ■ eler proceeds across a railroad track without taking the precaution to ascertain if there is a train in dangerous proximity, he does so at his peril. The application of this rule is modified to some extent by the circumstance that gates have been erected and watchmen employed at crossings. In such case a traveler is not required to exercise the same vigilance when he approaches a track as he would at crossings not so guarded. 89 Kan. 30, 130 Pac. 648, (Ann. Cas. 1914 C, 699.) ’
££ Human intelligence guarded the crossing and operated the gate in that case. In the present case an electrical, mechanical device was intended to give warning of approaching trains. Sometimes this bell would not ring when trains were passing, and at other times it rang when no train was in sight. An electric bell, which at most can be nothing but a warning of an approaching train to those who listen, cannot be classed with a gate thrown across a street to prevent passing over railroad tracks; neither can it be classed with a flagman who stands in the street and stops those who desire to cross when there is danger.It is more nearly analogous to the locomotive bell and whistle. Failure to ring the engine bell or sound the whistle does not relieve a traveler from the duty to look and listen before attempting to cross a railroad track. If the plaintiff’s contention in this respect is correct, a railroad increases its responsibility and liability by putting in electric bells at highway and street crossings. The object in putting in electric bells is to promote public safety, not to increase railroad liability. Silence of such a bell is not an invitation to cross railroad tracks without taking the ordinary precautions.
“In McSweeney v. Erie Railroad Co., 93 App. Div. 496, 498, 87 N. Y. Supp. 836, 838, an action for damages for injuries sustained at a crossing where there was an electric bell, the court said‘ The exercise of due care required the deceased, under the circumstances, to look .and listen for an approaching train, and the mere fact that the stationary signal bell was not ringing did not relieve him of the imputation of negligence if he failed to exercise this degree of care.’ ”
In my opinion the record presents no testimony upon which the jury had a right to base a verdict, and I therefore dissent.