An automobile-train collision occurred at the grade crossing of Douglas Boulevard and the St. Louis-San Francisco Railway Company’s tracks, located in the city limits of Oklahoma City, on November 8, 1973, at about 2 p. m. Pamela G. Fellers (Fellers) was the driver of the automobile. The automobile approached the railroad crossing from the north going south. The train approached the grade crossing from the northeast going southwest. The crossing was protected by crossbuck signs' and a bell. For an automobile travelling south on the road, that sign was located on the traveler’s right. There were some obstructions. The angles of intersection between the track and the road were approximately 47° and 133°. This was a very familiar crossing to Fellers. She had crossed it twice a day for a period of time going to and from work. She had crossed it about one and a half hours before the collision.
Fellers brought suit against St. Louis-San Francisco Railway Company (railroad), appellant-defendant, and the train engineer, Mendell, for personal injuries suffered from the collision. Trial was to a jury. Verdict was returned under comparative negligence. The verdict had the effect of denying recovery to Fellers. The jury found Fellers 50% negligent, the railroad 50% negligent, and attributed no negligence to the train engineer. Fellers appeals.
For the sole basis of admissibility of the expert witness’s testimony as to criteria used by railroads in determining the grade crossing protection given the highway traveler, Fellers argues custom and use of the railroad industry. Fellers admits she did not plead the custom and use sought to be proved. She contends there is no need to plead the custom and its violation for that is not the basis of her cause of action.
*974The railroad argues the necessity to plead a custom and use of the industry, and that the excluded testimony would have been an invasion of jury issue, that of the crossing being “extra hazardous” and more care required by the railroad in protecting the highway traveler, Fellers.
The custom prevailing in certain businesses must be pled in order to be subject of proof. Harper v. Levine’s, Inc., Okl, 435 P.2d 127 (1967).1 Harper, supra, involved an action for personal injury allegedly occurring as a result of a store’s negligence. Trial court sustained a demurrer to Harper’s evidence. Reversal was sought for trial court had refused testimony as to custom and usage of other similar stores as to the methods "of stacking and displaying rugs. There, it was this court’s opinion that the custom prevailing in a certain business must be pled in order to be subject of proof. The trial court was affirmed and reversal was refused.
Fellers cites Davis v. Whitsett, Okl., 435 P.2d 592 (1967) and contends no need to plead “custom and use” for the violation of the custom is not the basis on which her cause of action depends. In Davis, supra, testimony was allowed that if an operator told a welder to go ahead and weld an oil tank, then it was assumed the tank had been “safed.” It was the “usual practice” that the lease operator had the tank steamed out in preparation for welding.
We distinguish Davis, supra. The opinion doubted the testimony involved a “local custom” (p. 597). There, the danger was latent. The issue was whether the operator knew of the danger but failed to warn the welder. Besides the “usual practice,” there was other evidence which tended to show the operator did not warn the welder of the dangerous conditions. Here, the danger was not latent. The highway traveler, Fellers, was very familiar with the crossing. She was not without knowledge of the danger. By crossbuck sign and bell, the railroad had warned of the danger. Allowing an expert witness to testify of customary use by the railroad industry of criteria for determining what type of warning need be used at a particular grade crossing invaded the jury issue. Whether the crossing was “unusually dangerous” and, if so, then the railroad’s duty was for decision by the jury. Fellers makes no issue of the trial court instructions. Her brief includes a portion of instruction No. 9.2 Under that instruction, the issue of the character of the crossing as to being “unusually dangerous” was left to the jury, including the railroad’s duty in that instance. Missouri-Kansas-Texas Railroad Co. v. Edwards, Okl., 361 P.2d 459 (1961).3
*975In this case Harper, supra, is controlling. Contra to Fellers’ position, she sought at trial, through the expert witness, to make “custom and use” of the railroad industry the measure of the defendant railroad’s duty. That makes the violation of any such proven custom “the very basis upon which plaintiff’s cause of action depends.” The custom is required to be pled. Davis, supra, p. 598. Fellers ignored that requirement. She sought the advantage of proving the custom without pleading it. The trial court did not commit a reversible error in excluding the customs of the railroad industry sought to be shown at trial through the expert witness. The customs were not pled.
AFFIRMED.
WILLIAMS, IRWIN, BERRY and DOO-LIN, JJ., concur. HODGES, C. J., and DAVISON and SIMMS, JJ., dissent..Opinion at p. 129 reads:
“ * * * In the case at bar, no allegation of custom or usage in the industry was contained in the petition or in any of plaintiffs subsequent pleadings. In Sanders v. C. P. Carter Const. Co., 206 Okl. 484, 244 P.2d 822, 825, we stated:
‘However, in order that custom prevailing in certain businesses, trades, or occupations may be effective, it must be plead and proved that the custom relied on related to the particular trade and business or occupation in which the party to be charged is engaged unless he had knowledge of such custom.’ ‘ * * * However, where local custom is relied upon in order that evidence of such custom may be effective it must be plead and proved that the party to be charged had knowledge of such custom or that such custom is notorious, universal and well established.’
* * In the absence of such allegation evidence as to the local custom pleaded could not properly have been admitted in evidence.’ ”
. INSTRUCTION NO. 9:
. You are further instructed, however, if you believe from a preponderance of the evidence that the railroad crossing where the train of the defendant and the automobile of the plaintiff collided was an unusually dangerous crossing and the defendant railway company knew of the unusually dangerous nature thereof or in the exercise of ordinary care should have known of the unusually dangerous nature thereof, it is then the duty of the defendant railway company to employ such means as would be reasonably necessary considering the character of the crossing to warn the travelers of the approach of any trains . . .
. Opinion at p. 464 reads:
“The evidence in this case, which included photographs of the area in the vicinity of the crossing, developed all pertinent facts bearing *975upon the issue relative to whether the crossing was in fact unusually dangerous. The jurors, as persons of ordinary knowledge and experience, were, in our opinion, capable of arriving at a conclusion on said issue without benefit of the testimony of an expert witness. We are, therefore, of the opinion that the trial court erred in permitting plaintiff to introduce the evidence of which defendants complain.”