(concurring in the result).
The duty to drive an automobile no faster than will enable it to be stopped within the distance in which its headlights will reveal objects on the highway, is based on a rule which is designed to regulate speed. It is an attempt to correlate speed with visibility. In general, it is not coterminous with the duty to keep a lookout at night for objects *147on the highway as well as for objects which may be moving onto the highway or which have the potentiality for doing so, such as domestic animals straying along the road. These two duties — one to keep within a speed limit which will allow stopping within the distance in which objects are revealed by the lights, the other to at all times keep a lookout and especially at night for objects which may be or move on the highway — are closely related. Under certain circumstances these two duties may tend to become one. That one is not equvialent to the other becomes apparent when we consider the case where the cones of illumination made by automobile headlights reveal objects on the highway quite far away but in no way protect the driver against the exigency of an animal walking into that cone of light from the darkness almost directly in front of. his automobile, or at least well within the distance which his lights reveal objects. And I do not think the duty not to exceed a speed which will permit the driver to stop within the distance in which his lights will reveal objects ahead can be substituted for the driver’s duty to watch for objects moving into the path of his automobile at night. One is a duty relating to speed; the other is a duty of lookout which is more comprehensive and is always related to speed and facility for seeing. The speed to be maintained so as to satisfy the requirement of reasonable care in the latter case may be quite different from the rather mathematical one of driving at a speed which will enable the driver to stop where his lights reveal objects on the road. The former duty depends largely upon the circumstances. It certainly encompasses the circumstances of approaching a railroad crossing at night where the duty to look and listen is a part of an automobile driver’s whole duty.
A moving train of cars being slowly propelled onto a country highway by an engine in a backing movement, that is, the engine being in the rear of the train, may approximate the movement of an animal onto the highway. At least, regardless of the force which activates the movement *148—the mind of an animal controlling muscular movements or the force of an engine pushing a train of cars in the nighttime onto a highway — the result may be the same. In this case, laying aside for a moment the question of liabilities and duties in respect to the movement, had a large horse walked onto the highway at two miles an hour, a like collision might have resulted although the consequences of it might have been different.
An instruction in the case of a slowly moving train across the highway which states, as did instruction No. 7, in this case, that the
“railroad company’s employees have the right to presume that motorists on the highway will drive their cars under such control as to be able to stop within the distance at which they can see objects ahead”
may not fit many situations because the train approaching a cone of light may be illuminated by it too late to avoid a collision even though the lights would reveal objects in the path of the automobile a considable distance ahead of the point of impact. Hence the employees could not presume that the moving train of which they were the crew could be seen at night by a motorist who was going at a speed which would enable him to stop within the distance in which his lights would reveal objects and that he was therefore bound to stop and avoid the collision. Instruction No. 7 has no place where the object is not on the highway or close enough thereto to present the opportunity for the lights to reveal it when the forward movement of the automobile would bring the lights to shine on the objects, but is being gradually projected or moved onto the highway, especially where there is a question as to when the lights first revealed the moving object.
If the situation is one in which the evidence shows that the train was intruded into the cone of light at such a distance ahead of the automobile as to be revealed in time so that the motorist, going at a speed which would enable him to stop within the distance his lights would reveal *149objects, could have avoided the accident by stopping or going around the train, instruction No. 7 would be applicable. A simple instruction in such a case would be to tell the jury that if after the motorist saw or could have seen the train by its being illuminated by the lights of his car in time to have stopped or gone around it, and failed to do so he would have been guilty of negligence, for if he were going at a speed which would have enabled him to stop after he saw the train and failed to do so, he would have been guilty of negligence even though he was going at a speed less or no greater than that which would enable him to stop within the distance his lights would reveal objects. But if the train were intruded into his cone of light at a time when he had no time to stop at the speed he was going, either this speed would not have been the proximate cause of the accident, but the intrusion of the train the sole cause, or if his speed was a contributing cause it would not be because it was greater than the speed which would enable him to stop within the distance he could see objects by his lights but because either he was exceeding the prescribed speed of 50 miles an hour or because he was proceeding at a speed greater than he should have in view of the fact that he was approaching a railroad track which he knew was there or by the cross-buck should have known was there. So it comes down to this, that in any case unless a moving object has come onto the roadway at such a distance before an approaching automobile so as to be illuminated by the lights of the said automobile when by their power they would first catch a stationary object, instructions as to the speed-light range relationship are not applicable but confusing. Put in another way, where a moving object intrudes itself into the cone of light made by the lights of an automobile at a point nearer to the car than the total distance in which its lights will first reveal objects, instructions as to the speed-light range relationship are not applicable.
*150Taking the evidence most favorable to the plaintiff, it is apparent that instruction No. 7 was applicable in the instant case. The evidence reveals that the train was moving across the highway at a speed of two m. p. h. At this speed, as indicated in the prevailing opinion, it took the train 4*4 seconds to traverse the 13y% feet of track from the outer edge of the shoulder of the highway to the center of the lane of pavement in which the plaintiff was traveling. During these 414 seconds when the train was there upon the highway where it could be seen — and that is the important element in regard to objects on the highway — the plaintiff, if he was traveling 45 m. p. h., traversed 297 feet; yet he did not see the train until he was too close to avoid hitting it. Traveling at 45 m. p. h., the plaintiff would require 157 feet to stop, but by his own testimony he could see only 75-100 feet ahead of him with his lights on dim. Under his own testimony, he was probably negligent as a matter of law. He was going too fast to timely catch objects on the highway in order to avoid a collision.
There was other evidence which would not involve the speed-distance relationship such as the evidence that plaintiff when about 500 feet back of the point of impact was apprised of the presence of the train and yet failed to stop in time to avoid a collision. There is not a satisfactory explanation as to why for this reason he did not stop in time, but I doubt whether that evidence would make Instructions No. 7 and No. 9 applicable. These two instructions become applicable because, under the theory of the defendant, plaintiff, by his own evidence, was going too fast to stop short of the crossing after his lights revealed the train when it was well on the highway and therefore capable of being seen. I have thought it well to treat this phase of the case with more definiteness than the prevailing opinion appears to have treated it in the hope that the speed-distance-visibility relationship as laid down in the casés of Dalley v. Mid-Western Dairy Products Co., 80 Utah 331, 15 P. 2d 309, and Haarstitch v. Oregon Short *151Line R. Co., 70 Utah 552, 262 P. 100, will not be further extended to situations except where they are clearly applicable. As hitherto expressed in a former decision, I have doubt whether those cases did not present facts which warranted their submission to the jury.