(dissenting).
I dissent.
I would affirm the judgment of the trial court for the reason that plaintiff was guilty of contributory negligence as a matter of law.
A guest in an automobile is not charged with the negligence of the driver, but if he would avoid the defense of contributory negligence when injured by the negligence of another he must exercise such care for his own safety as an ordinary prudent or reasonable man would exercise under like circumstances. Both the driver and guest are measured by the same standard, but the conduct of the guest to meet the standard need not equal that of the driver.
The rule of behavior mentioned above is easy to state, but difficult to apply to the conduct of a plaintiff in many situations. This is particularly true in guest cases as the standards must be tailored to meet a person’s natural reluctance to interfere with the operation of the car in which he is invited to ride. However, the difficulties involved in applying a measuring rod should not be used as a reason for submitting all cases to a jury. There must be some standard by which the trial court can determine, as a matter of law, that the conduct of the guest did not meet the minimum requirements of due care. If we use the “reasonable man” test there ought to be an opportunity for the trial judge to compare the acts of the guest with those of *255the vague and suppositious man. If he does so and concludes that all reasonable minds would find that the guest failed to meet the standards, he should grant a motion for a directed verdict. As I understand our scope of review on appeal, we determine whether, from the facts before him, the trial judge correctly concluded that all reasonable minds would find that the guest did not conform to the standards of a reasonable person.
It may appear paradoxical that I should state the foregoing principle and then, after three of my associates have held the facts of this case permit reasonable minds to differ, that I hold they do not. The paradox, if it exists, is brought about by the specifications each judge writes for his assumed “reasonable man.” The path of departure is, therefore, not the principle but the standards by which we compare.
Experience has taught, and I believe reasonable men know, that railroad crossings are places of great danger. The speed, weight, and lack of control over stopping and maneuverability of trains have fixed upon the public the necessity of approaching railroad tracks with care and caution. The stop, look and listen concept is not without reason, and many tragedies would be averted if only the “look” requirement was complied with. I mention these facts for the reason that I believe railroad crossing accidents fall into a different category from other traffic collisions, and that ordinary care requires a higher standard of conduct on the part of the parties who might become involved in a collision. Because of the dangers involved, the duty of both the driver and the guest to be observant is increased.
Restatement of the Law of Torts, Paragraph 463, defines contributory negligence as follows:
“Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he should conform for his own protection and which is a legally contributing cause, co-operating with *256the negligence of the defendant in bringing about the plaintiff’s harm.”
The next paragraph (Paragraph 464) of that work defines standard of conduct in the following manner:
“Unless the plaintiff is a child or an insane person the standard of conduct to which he should conform is the standard to which a reasonable man would conform under like circumstances.”
In measuring plaintiff’s conduct to determine if she meets the permissible standards of a reasonable person, the facts I relate are as testified to by her, with the exception of the data taken from a map. She was a fully matured woman, who was possessed of good sight and hearing. She had lived in the area where the accident occurred and knew the railroad operated trains over the track involved. She was not under any emotional stress and the purpose of her journey did not require fast travel. She and the driver were out for a pleasure drive and were proceeding in a leisurely manner. The accident happened at mid-afternoon, when visibility was excellent. The car had just been driven over the railroad crossing, which was marked with cross arms and was slightly raised over the ground level. Plaintiff, after the car was turned around, knew that it was again necessary to pass over the track. The time element between the first cross over and the return attempt was short and the knowledge of having to cross a track was fresh in her mind. The map introduced in evidence and the testimony of witnesses established that the turn-around point in the ravine was approximately 600 feet from the crossing. The east edge of the ravine and the point from which the track crossing would be clearly visible to occupants of the car was at least 400 feet. If we start at this point and travel toward the crossing, the road for roughly 80 feet runs somewhat perpendicular to the track, possibly at an angle of 60 degrees. Taking into account the direction of travel of the car and the train, plaintiff would be faced slightly away from the oncoming train, but a slight *257turn of the head or a slight glance to the right would permit her to see at least 500 feet of the track over which the train was to travel. The road turns and parallels the track for approximately 250-300 feet, but the lateral distance between the two is not more than 80 feet at any place. At a point at least 75 feet from the crossing, the road turns to the right and is again almost perpendicular with the track from the point of the turn to the crossing. As to topography, the elevations on the map show that for the 400 feet of roadway from the ravine to the crossing there is a maximum variation of 4 feet from the lowest to the highest point; and that, as between the road and the track, the greatest variance in height is 4.8 feet. These variations are computed from ground levels and do not take into account the height above the road of plaintiff as she was seated in the car nor the height of the train above the track, which varied from 14 to 16 feet. Some mention is made of brush growing on the land and the presence of rocks, which might have interefered with her line of sight, but I believe the evidence is conclusive that plaintiff, after coming out of the ravine, would have an unimpaired view of the train for a distance along the track of approximately 500 feet and this distance would increase as the car neared the crossing. Moreover, she doesn’t claim to have looked except at the time the car came up out of the ravine, and so her view could not have been obstructed by any natural obstacles.
Plaintiff was on the right of the driver and in a much better position to see the train as it was approaching on her side. She was awake. She was not reading, and she was not occupied except in a casual conversation. There were no incidents to distract her attention. She knew she was approaching the railroad track upon which she could expect railroad traffic. She further knew that the driver would have restricted vision of trains approaching on plaintiff’s side. There was no highway traffic to watch. She makes no contention that there was any reason why she *258was not able to make some observations. The speeds of the car and the train were substantially the same, and both were traveling at relatively low speeds. While the car was travelling along the track parallel to the road, the train and automobile must have been in close proximity to each other. The train, which was made up of the engine and ten or twelve cars, was on her side, and the window was down. She heard no whistle, no bell, and no noise from the train. She was entirely unaware of its presence on the track until the automobile was on the crossing, and yet at all times it was slowly moving towards the point of collision. When she first saw the engine it was so close she hardly had time to make an outcry before the impact. The speed of the automobile was such that one look to her right at any time before reaching the crossing and a cautionary remark to the driver would have prevented the collision.
Fitted together, these facts hardly present a picture of a guest using reasonable care for her own safety. With reasonable opportunity to see what was readily observable, with ample time to observe, with full knowledge that she was approaching a place of possible danger, and without apparent reason or excuse for failure to see, plaintiff arrives at the point of collision without ever having seen the approaching train until just before the impact. While back seat driving might not be desirable, a statement from a guest “here comes a train” ought to be encouraged.
If, as proclaimed by the majority opinion, under these facts and circumstances a trial judge could not find that plaintiff failed to use due care for her own protection, then I pose this question: Under what facts and circumstances is a passenger in a car approaching a known railroad crossing required to look for oncoming trains ? Certainly, before overturning the trial court’s conclusion, we ought to be able to point out some evidence that plaintiff either made some effort to see the crossing could be made in safety or that she had reasonable grounds to excuse her for not looking.
*259Mr. Chief Justice WOLFE, in his opinion for the court, cites some of our previously decided cases dealing with the contributory negligence of a guest. When consideration is given to the facts of each of those cases they were correctly decided. However, they offer little help in solving the problem confronting us because they merely express a conclusion of the court that what the guest did or did not do under the facts of that particular case charged or did not charge him with contributory negligence as a matter of law. If contributory negligence of plaintiff is determined by comparing her conduct with the standards erected for the conduct of a reasonable person under similar conditions, the conduct of others under different conditions would hardly be a fair comparison. But, even when I attempt to follow the guideposts erected by those previous pronouncements, I find plaintiff’s conduct far short of that expected of a prudent person.
We long ago discarded the concept that the same duty that rests upon the driver rests upon the guest. See Montague v. Salt Lake and Utah Ry. Co., 52 Utah 368, 174 P. 871. But I do not believe we have previously gone so far as to hold that the guest may rely utterly and entirely upon the driver if he does not have knowledge of the driver’s incompetency. It is my opinion that in this case we embrace this rule, even if we do not adopt it.
I believe the better reasoned cases strike a middle ground between the two mentioned extremes. While it is impossible to find a case factually on all four’s with the present, action, I believe the Supreme Court of Connecticut in a somewhat similar case, Boscarello v. New York, N. H. & H. R. Co., 112 Conn. 279, 152 A. 61, 63, reasoned that conduct closely approximating that of plaintiff charged a guest with contributory negligence as a matter of law. The court in that case said:
“Because of the very limited nature of the duty of a passenger in an automobile to exercise care to guard himself from dangerous in*260cident to its operation, the question of his contributory negligence must usually be one of fact for the jury. There are, however, few, situations where watchfulness for his own protection is so within the bounds of reasonable care upon the part of a passenger in an automobile as in the approach to a grade crossing known to him. Almost with unanimity courts have held that in such situations, and in absence of circumstances of excuse, there is a duty resting upon him to be reasonably watchful for the approach of trains. Notes 18 A. L. R. p. 315, 22 A. L. R. p. 1294, 41 A. L. R. page 767, 47 A. L. R. p. 295.
“In the case at bar the deceased was riding with a driver who was unfamiliar with conditions at the location, and was looking straight ahead watching the road before him. The deceased, on the other hand, knew of the existence of the track, and must have been familiar with the situation at the crossing. He was seated upon the front seat upon the side from which the train was coming. The view of the track was somewhat obstructed, particularly for the driver on the left side of the seat. The deceased, had he looked with any degree of care commensurate with the needs of the situation, could have seen the train. The automobile was proceeding at only fifteen to twenty miles an hour, and a warning to the driver in time to stop it before reaching the track would not have introduced into the situation any new element of danger, and in all reasonable probability would have been effectual to prevent the accident. No circumstances justifying the failure of the deceased to take any precautions for his own safety appear. We cannot do otherwise than hold that the dereased was guilty of contributory negligence as a matter of law. We cite a few of the many cases in which, in analogous situations, other courts have reached like conclusions. * * *”
The books are filled with cases dealing with the duty of drivers and guests involved in crossing collisions. A reference to them would add little to either side of this dispute as a reading of their facts readily shows they do not build a model by which we can gauge plaintiff. But the principles announced therein lead me to the conclusion that the trial judge in this case was correct in holding that plaintiff’s acts and conduct did not approach a standard of care which required him to submit the cause to the jury. I believe he could say, as a matter of law, that she acted as an im*261prudent person rather than one who was using due care for her own safety.
CROCKETT, Justice, concurs in the dissenting opinion of Mr. Justice LATIMER.