DISSENTING AND CONCURRING IN PART
Arterburn, J.I concur in that part of Judge Aehor’s opinion overruling the demurrer to the first paragraph of complaint and dissent to the portion sustaining the demurrer to the second paragraph of complaint. I dissent to the entire opinion of Judge Bobbitt which holds the demurrers should be sustained to both paragraphs of complaint.
The second paragraph of complaint in substance alleges that the plaintiff below, a minor, was injured when the motor car in which she was riding as a passenger collided with a “cut of freight cars” left standing on a highway crossing which was “extra-hazardous” on a dark night, without any illumination, signal lights or flagman.
The legally significant facts in this case are the same as those in the case of Budkiewicz v. Elgin, Joliet & Eastern Ry. Co. (1958), 238 Ind. 535, 150 N. E. 2d 897. The Appellate Court decided the present ease (163 N. E. 2d 122, pending on petition to transfer) on the precedent of the Budkiewicz case.
• Judge Bobbitt’s opinion in this case is' a reversal of that case and is in substance the dissenting opinion to Judge Emmert’s majority opinion in that case. The precedent of the Budkiewicz case should weigh sufficiently to control this case. A change in the member*489ship of the court should not change the law; otherwise we have a court of men rather than a court of law and precedent. The use of Appellate Court cases to overrule this later Supreme Court case violates all rules of legal precedent. Trial courts, lawyers and litigants are entitled to certainty and stability in the law and to rely upon precedent in their work. Legal precedent requires that the law should not be left in uncertainty following elections.
In the Budkiewicz case we held that both the common law and the Statute (Burns’ Ann. St., §10-3904) prohibit “a cut of cars” being left on a railroad crossing at a highway on a dark night, with nothing to make them visible to mortorists. We said at page 907 of 150 N. E. 2d:
“The method (and speed) of travel on the highways has changed considerably over the last fifty years. The acts which are required to exercise due care by railroads, as well as by travelers on the highway, have changed as travel has changed from the horse-drawn vehicles on gravel roads to the faster-moving motor car on smooth paved roads. Likewise the method and means of signaling and' warning of danger has improved during the years by the perfection of various automatic devices, lights, flares, reflectors and luminous paints to the extent that such uses are now reasonable, where previously they were not practical.
“In this age, regardless of any statute, it would be negligence at common law for anyone to leave a large, yet indistinguishable object on the traveled portion of a highway on a dark night (be it a motor vehicle or a railroad car), without warning other travelers of the deceptive condition. Whether or not such a condition existed as a result of an emergency and the injury occurred before the danger could be eliminated, is a matter of defense.”
No new reasons are given for overruling the Bud-kiewicz case. The reasons are the same as those given *490in the dissenting opinions at that time, which attempt an explanation of why railroad companies should be given preferential treatment in the field of negligence over the other transportation systems and the highway traveler.
One of the reasons given is that the same principles of common law negligence should not be applied to the operation of railroads as it is to the operation of motor vehicles because “their operation (railroads) began after the development of much of the common law of negligence.” (Our italics.)
Negligence is based upon the duty to use care and it consists of failure to exercise that degree of care which a person of ordinary prudence would exercise under like circumstances. It is to be measured in the light of modern ways and means of life where danger can be reasonably anticipated and likewise reasonably avoided. Wabash Railway Company v. McDaniels (1882), 107 U. S. 454, 2 S. Ct. 932, 27 L. Ed. 605; Southern Railway Company v. Harpe (1944), 223 Ind. 124, 58 N. E. 2d 346; Jones v. Cary (1941), 219 Ind. 268, 37 N. E. 2d 944; E. Coast Lines v. M. & C. C. of Balto. (1948), 190 Md. 256, 58 A. 2d 290, 2 A. L. R. 2d 386; City of Radford v. Calhoun (1935), 165 Va. 24, 181 S. E. 345, 100 A. L. R. 1378; Restatement, Torts, §298, (1934); 1 Shearman & Redfield, Negligence, §7 (1941).
Judge Bobbitt’s opinion holds that a railroad company does not have the same common law duty to exercise the care imposed upon all other persons, including operators of motor vehicles. It also states that because of the importance of the railroads to national defense, they should be a favored class and exempt to some extent from the principles of common negligence. Such a situation has no relevancy to the question of ■negligence. Such concern is a matter for- the legisla*491ture — not the judiciary. There are many industries, including the motor truck industry, which are important to our national defense and whose “operation began after the development of much of the common law of negligence.” Accordingly, all such industries would be entitled to special exemptions from common law principles of negligence. We thus become a legislative rather than a judicial body.
As stated previously, the statute also prohibits the act alleged in this case, namely, permitting “a cut of freight cars” to stand on the crossing. The statute states:
“Whoever, being a conductor or other person having charge of, or running a railroad train, carrying, or used for carrying, freight, permits or suffers the same or any car or locomotive engine composing the same to remain standing across any public highway, street, alley or farm crossing, or who, whenever it becomes necessary to stop such train across any public highway, street, alley or farm crossing fails or neglects to leave a space of sixty [60] feet across such public highway, street, alley or farm crossing shall be fined . . .” Acts 1905, ch. 169, §666, p. 584, being §10-8904, Burns’ 1956 Replacement, supra.
Judge Emmert in the Budkiewicz case said: (150 N. E. 2d 897, 900, 901)
“. . . The statute was enacted for the benefit of the public using the highways, not only to keep traffic moving, but to protect travelers from this kind of an obstruction in the highway. See Central Indiana R. Co. v. Wishard, 1917, 186 Ind. 262, 272, 114 N. E. 970. A violation of this statute is negligence per se.”
To me the language of the statute is plain. It was intended that a “cut of freight cars” should not be left standing on a highway crossing. The cars should be *492separated by a space of 60 feet at the crossing instead. However, verbal gymnastics are indulged in, in attempting to exempt railroads from the application of such a statute. A great deal is made of the words “remain standing” in the law. To us there is nothing unusual about this phrase. The word “remain” itself means nothing more than “standing.” Using them together adds nothing to the meaning. In this case, where a railroad has left “a cut of freight cars” standing across the highway on a dark night, there is certainly a violation of that statute. The cars had to “remain standing” after they were “cut” or detached from the train. As stated in Judge Bobbitt’s opinion, “remain standing” as defined in Webster’s New International Dictionary, 2d ed., means “to be left after a number or quantity has been subtracted or cut off — to stay behind while others withdraw.”
A “cut of freight cars” could not be better defined. To me the ordinary and sensible meaning of the statute has been mutilated in order to make the railroads a favorite of the courts. The traveling public on the highway is the victim. The statute will no longer have any effective meaning.
There is a further allegation in this paragraph of complaint that the crossing was “extrahazardous” and the facts are set out showing such to be true. Judge Achor, in the case of Gillies, By Next Friend v. N. Y. C. R. R. Co. (1954), 124 Ind. App. 382, 116 N. E. 2d 555 there held in effect that where it was shown that the extrahazardous character of the crossing existed, even though no flasher signals had been ordered erected at such a place, a complaint based upon that condition would be sufficient. He stated (at pp. 387, 388) :
“The law is well settled that railroads are under no positive common-law duty to maintain flagmen *493at their crossings or to install a light, signal or warning of any kind to indicate that a train is occupying the same, unless ordinary ca/re would require that such action be taken because of the extrahazardous character of the crossing. . . .
“It is not alleged that the intersection here involved was extrahazardous or that there was any rule or regulation by a properly constituted authority requiring that flagmen be stationed, or mechanical flashers be installed, at the intersection.” (Our italics.)
To hold a railroad owes no duty to the public using an extrahazardous crossing until the Public Service Commission happens to find out about it after the accident and then holds a hearing and orders protective measures, as in this case, is not realistic.
To say that a railroad can be held to be negligent for the dangerous condition of its highway crossing only in event it violates a statute or order of a Public Service Commission is, in effect, exempting it from the common law rules of negligence that are applicable to all persons, including operators of motor vehicles. It is evident without citation of authorities that although motor vehicles have statutes and regulations which control their operation and a violation of which may be held to be negligence, still there are other acts not covered by statutes or regulations for which an operator of a motor vehicle may be held liable under the common law of negligence. I feel the same principle applies to all persons alike, including railroads. Willett v. Baltimore & O. S. W. R. Co. (1936), 284 Ill. App. 307,1 N. E. 2d 748; Tanzi v. N. Y. Cent. Rd. Co. (1951), 155 Ohio St. 149, 98 N. E. 2d 39, 24 A. L. R. 2d 1151.
In Wagner v. T. P. & W. R. R. (1933), 352 Ill. 85, 90, 185 N. E. 236, 238, the Supreme Court of Illinois said with reference to the common law duty of a railroad:
*494“Defendant contends that it is not required to maintain warning signs at highway intersections except where specifically directed by the Commerce Commission, and that the record fails to show any order or direction of the commission relative to signs at the intersection where the accident occurred. . . . But regardless of the situation produced by the failure to prove an order of the commission, there is a common-law duty devolving upon railroads to exercise such care and use such precautions as will enable the traveler on the highway, if he exercises ordinary care, to ascertain in the nighttime the approach of a train over a street crossing such as the testimony shows this one to have been. Special conditions creating special hazards at crossings require a watchman, gates, or other warning to travelers. Opp v. Pryor, 294 Ill. 538, 128 N. E. 580.” See also: Bales v. Pennsylvania R. Co. (1952), 347 Ill. App. 466, 107 N. E. 2d 179.
Both the common law and the statute of this state fix the liability of the railroad as alleged in the second paragraph of the complaint. We can find no valid legal reasoning why railroads should be exempt from principles of the law of negligence which applies to other transportation systems and the traveling public using the highways. Any person leaving a dark, obscure object across the traveled portion of the highways at night, whether it be a railroad company or a motorist, creates a well known hazard and if it is left unattended, without any illumination, in my opinion it is “intrinsically dangerous” and an act of negligence. E. Coast Lines v. M. & C. C. of Balto. (1948), 190 Md. 256, 58 A. 2d 290, 2 A. L. R. 2d 386; City of Radford v. Calhoun (1935), 165 Va. 24, 181 S. E. 345, 100 A. L. R. 1378; Restatement, Torts, §297 (1934). If such a condition results from an emergency, then it is a matter of defense and it is not necessary to negative or anticipate such an affirmative defense in the complaint, as stated in the *495majority opinion. It is a new principle of law made especially for this case that a plaintiff must “allege facts with regard to the reason for the period of time during which appellee’s train was upon the particular crossing.” Such matters are within the peculiar knowledge of the railroad—not the injured party. They are matters of defense. We point out the criminal statute does not fix any length or period of time during which the cars may “remain standing” on the crossing. In fact, it grants the railroad no time for such standing, and instead says that the cars shall be broken at the crossing and “a space of sixty [60] feet across such highway shall be left.” Yet the majority opinion states the plaintiff must “allege facts” showing the period of time during which the cars were left standing on the crossing was unreasonable.1 This is adding something to the statute which is not in the statute.
The burden is on the railroad (as any ordinary defendant) to show it had an excuse for violating the law against blocking the hig-hway (by a cut of freight cars on a dark night without lights or signals) and not breaking the cars with a space of at least sixty [60] feet at the crossing, as provided by the statute.
This is not a case such as those cited in the opinions of Judges Bobbitt and Achor, where a motorist hit railroad cars at the time being moved across the highway by an engine. This is a case where a cut of cars were left standing on an “extrahazardous” highway crossing at night, and as the facts state, they were obscure and difficult to see, with no signals or warning lights. Any reasonable person knows that such a blocking of the *496highway is extremely dangerous in this day and age of motor traffic. Railroads may not insist upon operating their trains as they did one hundred years ago, when only horse-driven vehicles used crossings. Their conduct and the care used must be commensurate with modern methods of travel.
“In determining what is the duty, the failure in which constitutes negligence, regard is to be had to the growth of science, and the improvement in the arts, which take place from generation to generation.
“Many acts or omissions are now evidence of gross carelessness which a few years ago would not have been culpable at all, as many acts are now consistent with great care and skill which in a few years will be considered the height of imprudence.” 1 Shearman & Redfield, Negligence, §7 (1941).
I cannot be a party to straining and stretching legal principles and a statute beyond logic and reason, to give railroads an advantage over ordinary litigants. We have said time over time that this court takes judicial notice of the improvements in the arts and sciences which have a bearing upon the litigation.
If railroads are to be made the favorites of the law in the face of both the statute and the common law, it should be done by the legislature and not by the courts. The traveling public is the loser and victim in' this case. I feel transfer should be denied and Judge Bierly’s opinion on behalf of the Appellate Court should be affirmed on the basis of precedent and the law in this state. The demurrer to the first and second paragraphs of complaint should be overruled by the trial court.
Note. — Reported in 178 N. E. 2d 314.
. Using the same rationale as that used in the majority opinion, one charged in a case of “overtime parking” could defend on the ground the statute or ordinance did not prohibit temporary or emergency parking and the complaint must allege all possible facts showing that parking (“the remain standing”) was not an emergency or temporary condition.