(dissenting) :
I agree that the jury’s verdict for plaintiffs should be reversed, but with proper deference to the thorough and comprehensive opinion of the Court herein, I disagree that this case should be remanded for a new trial. I would reverse and render in favor of defendant.
This grade crossing accident between a railroad passenger train and truck, occurred in the early afternoon of a clear April day at a point in the outlying area of Orange, Texas, where Texas Highway 87 crosses the main line of the Southern Pacific Railroad Company in its Houston-New Orleans Division. It is undisputed that the crossing is open and unobstructed. The truck had proceeded easterly for some distance along South Street, which is parallel with and 50 feet north of the rail line. The train was also moving east. The fireman who was on the left side of the locomotive first observed the truck proceeding east on South Street at a point about 1,200 or 1,300 feet west of the crossing. When the truck driver reached Highway 87 he stopped and then turned to his right ahead of three vehicles which were stopped and waiting the train’s passage. On the other side of the tracks vehicles were also stopped, waiting for the train to pass. The driver then proceeded slowly up to the rail crossing and inexplicably started across directly in the path of the oncoming train which struck him. He was familiar with this intersection of rail line and highway, having crossed it many times. Whether he saw or could have seen the flasher signal light at the crossing, or heard the train whistle and bell, we do not know though there is no reason apparent why he could not. Nor is the answer necessary to our decision for it is obvious that there was nothing to prevent his seeing the noisy, 637-foot approaching train. He should have looked before he crossed. If he did look and nevertheless crossed, he was similarly at fault. Under either alternative, he was guilty of substantial contributory negligence, which under Texas law barred recovery. See McFall v. Fletcher, 138 Tex. 93, 157 S.W.2d 131, 133 (1941).
In answer to the special interrogatories, the jury found the truck driver was negligent in failing to keep a proper lookout for his own safety, in failing to keep his vehicle under proper control, in failing to bring his vehicle to a stop within 50 feet but not less than 15 feet from the nearest rail of the railroad when a clearly visible electrical or mechanical signal was giving warning of the immediate approach of the train, and in failing to stop within 50 feet but not less than 15 feet from the nearest rail of the railroad when the approaching train was plainly visible and in hazardous proximity to the crossing. They could hardly have decided otherwise. Curiously, however, the jury also answered special interrogatories to the effect that the driver’s negligence was not a proximate cause of the accident. Here the jury clearly erred and in a manner that reasonable men should not have differed, for reasonable men should have agreed, under the compelling facts and circumstances of this case, and as a matter of law, that the driver’s negligence was a proximate cause of the accident. See Boeing Company v. Shipman, 5 Cir., 1969, 411 F.2d 365. “Proximate cause exists as a matter of law where the circumstances are such that reasonable minds could not arrive at a different conclusion.” Missouri Pacific Railroad Company v. Dean, 417 S.W.2d 357, 359 (Tex.Civ.App.1967). The Texas rule is “that the negligent conduct on the part of the person injured will be held to be a proximate cause of his injury when, but for this negligence, the injury would not have been inflicted, and the injury ought reasonably to have been anticipated as a consequence of the negligence, in the light of attending circumstances.” Missouri Pacific Railroad Company v. Dean, 417 S.W.2d 357, 362 (Tex.Civ.App.1967). Applying that principle I am left with no doubt that the deceased driver’s con*20tributory negligence was a proximate cause of the accident. I am in firm disagreement with the majority which declines to hold that the approaching train was not “plainly visible” to the truck driver. The record is strongly to the contrary. Nothing prevented his seeing the train. It was in as plain view as anything can be plain. The crossing was in no way an extra hazardous or special circumstances crossing.
Thus it became the duty of the trial judge to examine the peculiar facts and circumstances here, and in due course to grant the defendant’s motion for judgment notwithstanding the verdict. See Southern Pacific Company v. Matthews, 5 Cir., 1964, 335 F.2d 924. Therefore, I cannot join in the majority opinion insofar as it remands this case for a new trial.