dissenting.
I respectfully dissent.
This was an action based on negligence, not breach of a custom. Plaintiff’s lawsuit was based upon defendant’s alleged failure to design, construct and maintain its crossing and a suitable warning device in the manner that a reasonable and prudent railroad would have done in the same circumstances.
Plaintiff’s expert, Gerald Cysewski, was offered for the sole purpose of stating facts regarding the criteria promulgated by the American Association of Railroads for the design, construction and maintenance of crossings and suitable warning and safety devices. This testimony was proffered only as evidence tending to support plaintiff’s claim that defendant failed to exercise ordinary care. The standards were not the basis for the lawsuit. They were only possible indicia of negligence.
A custom or practice of a industry must be pled only when breach of the custom itself is the basis of recovery or defense. When the basis of the lawsuit is negligence and custom or standard practice is merely evidence thereof, it need not be pled.
The law on this subject is clearly set forth in Davis v. Whitsett, Okl., 435 P.2d 592 (1967). In Davis, as in the instant case plaintiff brought an action in negligence and presented evidence of a “custom” only to show the jury what others in the same circumstances do, as an aid to the jury in its determination of whether defendant was negligent. In Davis, the testimony concerned the usual practice of oil lease operators to “safe” (steam out) tanks before calling welders to weld the tanks. The Court noted that even if it were assumed that this practice amounted to a “local custom”, it need not be pled for the breach of the “safing” custom was not the basis of plaintiff’s lawsuit. Her basis for recovery rested upon negligence, and evidence of this usual procedure merely tended to establish that fact.
The court went to great lengths to explain that a custom needs to be pled only in the situation where breach of the custom itself is the basis of recovery.
The court discussed, at 598, several previous cases1 wherein it had held necessary to plead a custom. The following discussion by the court fully explains the distinction between those certain instances where cus*976tom must be pled and a situation such as we have in the instant case, where custom merely furnishes evidence of negligence and need not be pled.
“Analysis of the opinions in the above cited cases [see footnote 1] discloses that in each one the proof of a breach of some alleged local custom or usage would also establish the existence and a breach of an obligation of the defendant to the plaintiff. The breach in each case was the basis of the plaintiff’s claim of damage. The court in the cases applied the rule as set out in Smith v. Stewart et al., supra, as follows:
‘ * * * it is generally the rule that, before a local custom or a- custom or usage applying to a special or particular class of business may be made the basis of recovery, it must be pleaded by the party relying on it. * * * ’ ******
“The reason behind the requirement of the cited cases that the custom be pleaded is that the violation of the custom is the very basis upon which plaintiff’s cause of action depends. The same reason does not exist in the case before us. “In this case if the plaintiff relied, for his cause of action, upon the defendants’ breach of a custom which required the latter to steam clean a recently used oil tank before permitting a welder to work on it, then clearly the above cited cases would require the pleading of such a duty and the breach thereof. Here, however, the issue is whether or not the defendant knew of the danger and failed to warn plaintiff’s decedent of the existence of volatile fumes in the tank, before the latter was advised by the agents of defendants that the tank was “ready” for welding. The evidence was admissible, as we have seen, for the purpose of showing that plaintiff’s decedent had no reason to be aware of the existence of such fumes in the tank and for the further purpose of showing that on the contrary defendants did have reason to be aware of such latent defects. Other evidence was also admitted which tended to show defendants did not warn the plaintiff’s decedent of the dangerous conditions.
“Evidence of local custom is admissible without first pleading it if such custom is not relied upon as the basis of or one of the material issues in plaintiff’s cause of action. Where the real and basic issues involve defendants’ knowledge of a dangerous condition and a failure to warn invitee of the existence of such danger, evidence of a local custom tending to establish such facts need not be alleged.” (emphasis supplied)
And, paragraph one of the court’s syllabus reads as follows:
“1. Where the breach of a local custom or usage is one of the grounds of negligence upon which the plaintiff relies it must be plead that the party to be charged had knowledge of such custom or that such custom is notorious, universal and well established before proof of such custom will be admissible; conversely, where the petition charges common law negligence, the existence of a custom or procedure is merely evidentiary and need not be pleaded as such evidentiary fact.” (emphasis supplied)
The reason for requiring a custom to be pled when it forms the basis of a lawsuit is basic — it gives the adverse party notice of the nature of the claim being made against him.
In Smith v. Stewart, 29 Okl. 26, 116 P. 182 (1911), plaintiff brought action against defendant for money he alleged defendant had been overpaid for sale of his cotton. Plaintiff had pled a contract between the parties and presented evidence of that contract in his case in chief, but on rebuttal attempted to base his recovery on an alleged custom of cotton sellers. This Court held the trial judge was correct in excluding testimony regarding the custom as plaintiff had attempted to “ . . . make such usage or custom, if it existed, the basis of his recovery.” (116 P. at 182).
The Court explained the rationale as follows:
“Plaintiff by his petition, as well as by his evidence in chief, gave notice to defend*977ant that he was basing his right of recovery only upon a specific contract guaranteeing the weights. It would be manifestly unfair to a defendant, who had prepared to meet his case upon this issue, to permit plaintiff in rebuttal to introduce evidence establishing not a specific contract, but one created by the existence of a local custom or usage of which the party had knowledge and with reference to which they were presumed to contract.”
In the instant case, plaintiff’s action was for negligence and, as in Davis, supra, the usual practice in the industry even if it is viewed as a “custom” was offered merely as evidence of ordinary care. It was not the basis of recovery. Davis, supra, is not distinguishable. Harper v. Levines, Inc., Okl., 435 P.2d 127 (1967) is not inconsistent with Davis.
Evidence of what others, in the same position as defendant, do in the same circumstances is admissible to aid the jury in determining whether defendant was negligent. This, of course, does not establish directly the ultimate issue of negligence by showing that failure to comply with the usual procedure or custom was the equivalent of negligence “per se”. Davis v. Whitsett, supra. Customary practice is not ordinary care; it is but evidence of ordinary care. Northwest Airlines v. G. L. Martin Co. (6th Cir., 1955) 224 F.2d 120, 50 A.L.R.2d 882, cert. den. 350 U.S. 937, 76 S.Ct. 308, 100 L.Ed. 818 reh. den. 350 U.S. 976, 76 S.Ct. 431, 100 L.Ed. 846. See also: Annot. Admissibility Upon Issue of Negligence of Evidence of Custom or Practice of Others, 137 A.L.R. 611; 2 Harper and James, The Law of Torts, § 17.3 (1956); 1 Jones on Evidence, § 4.25 (6th Ed. 1972).
Apart from the issue of whether plaintiff’s expert should have been allowed to testify from his own knowledge and expertise as to criteria which must be considered in the design of crossing and warning systems, is the issue of the admission of the relevant standards of the American Association of Railroads through his testimony.
Safety codes or standards promulgated by voluntary associations, such as the American Association of Railroads, have been recognized as admissible in many jurisdictions. While not carrying the force of law, industry standards are recognized as relevant and material on the issue of negligence.
See: Annot. Admissibility of Safety Codes or Standards, 58 A.L.R.3d 946. See, also, e. g.: Darling v. Charleston Comm. Mem. Hospital, 33 Ill.2d 326, 211 N.E.2d 253, 14 A.L.R.3d 860 (1965), cert. den. 383 U.S. 946, 86 S.Ct. 1204,16 L.Ed.2d 209 (hospital regulations and standards); Jorgensen v. Horton, Iowa, 206 N.W.2d 100 (1973) (Associated General Contractors Manual); St. Louis-San Francisco Railway v. Burlison, Fla.App., 262 So.2d 280 (1972) (American Association of Railroads Standards); Boston & Maine Railroad v. Talbert (1st Cir., 1966) 360 F.2d 286 (“recognized” standards for railroad and highway crossings); Rouse v. New York & S. L. R. Co., 349 Ill.App. 139, 110 N.E.2d 266 (1953) (standards of American Association of Railroads); Pust v. Union Supply Co., Colo.App., 561 P.2d 355 (1977) (safety codes regarding conveyors); McComish v. DeSoi, 42 N.J. 274, 200 A.2d 116 (1964) (private and military safety codes); Isom v. Schettino, 129 Ga.App. 73, 199 S.E.2d 89 (1973) (traffic manual regarding warnings for railroad crossing); Nordstrom v. White Metal Rolling and Stamping Corp., 75 Wash.2d 629, 453 P.2d 619 (1969) (private standards for ladder construction).
Additionally, I do not believe the trial judge was correct in excluding plaintiff’s proffered expert testimony by reason of Missouri-Kansas-Texas Railroad Co. v. Edwards, Okl., 361 P.2d 459 (1961). In Edwards we found the trial judge erred by allowing plaintiff’s expert to give his opinion that the crossing in question was a “dangerous, hazardous crossing”, (at 463).
Plaintiff in the instant case specifically advised the trial judge that in accord with the dictates of Edwards, no attempt would be made to elicit an opinion from Cysewski as to whether this crossing was ultra-haz*978ardous. The court was advised that Cysew-ski would state to the jury only those criteria2 which, in the judgment of the railroad industry, must be considered in the design, construction and maintenance of crossings and ascertaining suitable signalling and safety devices. Plaintiff also advised the court that he would not elicit an opinion from Mr. Cysewski as to what type of signal should have been placed on this crossing; nor would his testimony bear on how a reasonable, prudent automobile driver could have safely used the crossing.
Plaintiff argues that the testimony and evidence was admissible and that the trial court erred in excluding it. She cites and relies on Koch v. Southern Pacific, 266 Or. 335, 513 P.2d 770 (1973) in support of her contentions.
In my opinion, Koch is directly on point and the reasoning of the Oregon Supreme Court is persuasive.
In Koch, as in Edwards, supra, the expert’s opinion that the crossing in question was “ultra-hazardous” was held to be improper as was his opinion of the capabilities of a reasonably prudent automobile driver to use the crossing. The Court found these areas of questioning invaded the jury’s province and required application of “legal” standards rather than industrial knowledge and expertise. The court was careful to point out however, that the expert’s testimony regarding those circumstances which tend to make a crossing dangerous and the ways those dangers may be alleviated are proper and appropriate areas of expert testimony. ■
The Court described the proper bounds of expert testimony as follows:
“There is no doubt that the experts who testified in the present case had superior knowledge and training concerning railroad crossings and those circumstances which make them dangerous. Thus, it was appropriate for the experts to point out to the jury, as they did, the aspects of the crossing which increased its danger to vehicular traffic and the steps that could have been taken by the railroad to alleviate such danger.” 513 P.2d at 773.
* * * * * *
“We believe an expert in railroad crossing safety is no more competent to evaluate the capabilities of a reasonably prudent automobile driver than are the court or members of the jury. Such an expert’s training and experience give him special knowledge of those situations which tend to cause accidents. In addition, he can predict with some degree of accuracy the relative decrease in the accident rate at crossings which will be realized by the use of different kinds of safety equipment.
“We therefore, must hold that the expert witnesses exhausted their expertise when they testified regarding the dangerous circumstances surrounding the crossing and the ways in which those dangers could be alleviated.”
For the above and foregoing reasons, I believe the plaintiff should have been allowed to present the testimony of her expert witness and the standards of the American Association of Railroads regarding crossings. I believe she was prejudiced by the exclusion, and therefore respectfully dissent.
I am authorized to state that HODGES, C. J., and DAVISON, J., join with me in this dissent.
. Smith v. Stewart et al., 29 Okl. 26, 116 P. 182 (an action on an express, oral contract); School District No. 22, Love County v. Culwell, 62 Okl. 283, 162 P. 949 (another action on express contract); Gilbert v. Citizens’ National Bank of Chickasha, 61 Okl. 112, 160 P. 635, L.R.A. 1917A, 740 (an action for wrongful conversion of personal property by breach of express contract); Burnett et al. v. Tisdell, Okl., 370 P.2d 924 (an action to quiet title to real property in which the defendant pleaded title by adverse possession); and Sanders v. C. P. Carter Construction Co. et al., 206 Okl. 484, 244 P.2d 822 (a negligence action.)
. Operating speed of the train, speed of vehicles crossing tracks, obstructions of sight distances in the four quadrants being crossed, the angle that the track crosses the roadway, elevation of the roadway.