(dissenting) : The facts are undisputed, and the question is whether or not the plaintiff took those precautions for his safety which the law required him to take. It was his duty to use his faculties of sight and hearing, and to take the steps necessary to make those faculties available for efficient use. The statement made in Railway Co. v. Jenkins, 74 Kan. 487, 488, 87 Pac. 702, that a man warned of danger by the presence of a railway track “must be vigilant in trying to see” has not to my knowledge been overruled.
Everybody knows that an interurban car is wider than the track on which it runs. In this case the track lay behind a hedge wall fifteen feet high and fourteen feet wide, which obstructed both sight and hearing. The plaintiff stopped at the turn of the road where it *35was impossible to see the on-coming car far enough away to avoid a collision. Then he simply drove on, taking his chances .and reaping the consequences. The result is that he was guilty of contributory negligence as a matter of law.
In my judgment the law applicable to persons in the situation of the plaintiff is well stated and discussed in the case of New York Cent. & H. R. R. Co. v. Maidment, 93 C. C. A. 413, 168 Fed. 21. The syllabus reads as follows:
“Because of the fact that a collision between a railroad train and an automobile endangers, not only those in the automobile, but also those on board the train, and also because the car is more readily controlled than a horse vehicle, and can be left by the driver, if necessary, the law exacts from him a strict performance of the duty to stop, look, and listen before driving upon a railroad crossing, where the view is obstructed, and to do so at a time and place where stopping and looking and listening will be effective.” (Syl. ¶ 1.)
In the opinion it was said:
“With the coming into use of the automobile, new questions as to reciprocal rights and duties of the public and that vehicle have and will continue to arise. At no place are those relations more important than at the grade crossings of railroads. The main consideration hitherto with reference to such crossings has been the danger to those crossing. A ponderous, swiftly moving locomotive, followed by a heavy train, is subjected to slight danger by a crossing foot passenger, or a span of horses and a vehicle; but, when the passing vehicle is a ponderous steel structure, it threatens, not only the safety of its own occupants, but also those on the colliding train. And when to the perfect control of such a machine is added the factor of high speed, the temptation to dash over a track at terrific speed makes the automobile, unless carefully controlled, a new and grave element of crossing danger. On the other hand, when properly controlled, this powerful machine possesses capabilities contributing to safety. When a driver of horses attempts to make a crossing and is suddenly confronted by a train, diffi*36culties face him to which the automobile is not subj ect. He can not drive dose to the track, or stop there, without risk of his horse frightening, shying, or overturning his vehicle. He can not well leave his horse standing, and if he goes forward to the track to get an unobstructed view and look for coming trains he might have to lead his horse or team with him. These precautions the automobile driver can take, carefully and deliberately, and without the nervousness communicated by a frightened horse. It will thus be seen an automobile driver has the opportunity, if the situation is one of uncertainty, to settle that uncertainty on the side of safety, with less inconvenience, no danger, and more surely than the driver of a horse. Such being the case, the law, both from the standpoint of his own safety and the menace his machine is to the safety of others, should, in meeting these new conditions, rigidly hold the automobile driver to such reasonable care and precaution as go to his own safety and that of the traveling public. If the law demands such care, and those crossing make such care, and not chance, their protection, the possibilities of automobile crossing accidents will be minimized. In the case of trolleys crossing railroads at grade, the practice is general for the conductor to go ahead and from the track signal the halted car to advance. This would, of course, be impracticable as a rule for automobiles; but it illustrates the trend of the law, as the size of crossing vehicles makes collision. with them more serious, to enforce greater safety precautions.” (p. 415.)
I am authorized to say that Mr. Justice Porter concurs in this dissent.