(dissenting).
Appellant complains in its second point that the court erred in failing to render judgment for appellant because Mrs. Hasting was guilty of contributory negligence as a matter of law in violáting Art. 6701d, Section 86(c) V.R.C.S. It bases its contention on the jury finding that as Mrs. Hasting approached the railroad crossing a train was approaching within approximately 1500 feet of the crossing, emitting a signal audible from such distance, and such train by reason of its speed and neat ness to such crossing was an immediate hazard, and although she stopped within fifty feet and not less than fifteen feet from the crossing she proceeded in an attempt to cross when she could not safely do so. The writer agrees with the appellant in such contention. Plaintiff did not fulfill the requirements of the statute by merely stopping, she was further required not to proceed until she could safely do so, and that part of the statute is just as mandatory as the part requiring her to stop. The same circumstances found in this case to be existing by the jury, which made it the absolute duty of plaintiff to stop, also made it the absolute duty of plaintiff not to proceed. Although the court did not submit the issue as to whether she proceeded to cross when she could not safely do so, from the facts of this case it is not' essential to have such a jury finding, because there was no evidence whatsoever that the immediate hazard found to be existing as Mrs. Hasting approached the crossing ceased to exist or was lessened in any respect whatsoever after she stopped. It certainly is not the purpose of such statute to require a person to stop his automobile in the face of such an immediate hazard in the interest of safety, and then let it be a question for the jury as to whether such person was negligent in proceeding to cross said tráck in the face of such immediate hazard. Now if the evidence showed that after plaintiff stopped the train materially reduced its speed to such an extent that the immediate hazard of the train might no longer exist, then it may be a question for the jury as to whether she could proceed in safety. The word “safe” means freedom from danger. The facts in this case showed that the train was becoming more of a hazard to the crossing each second, rather than lessening. It is not a question of whether plaintiff could have made it across without getting hit if her engine had not died, or whether, as the engineer testified, she could have made' it across if the pickup had not stopped. The question is, when she was stopped in a safe place, was it safe for her to proceed in an attempt to cross in the face of the immediate hazard. Reasonable minds cannot differ on the conclusion that it was not safe to proceed at such time. If it be held that when conditions exist that under the statute a motorist is required to stop, then the question of proceeding under the same circumstances is governed by the law of ordinary negligence, then the purpose of the statute is absolutely destroyed. Texas & N. O. R. Co. v. Stewart, Tex.Civ.App., 248 S.W.2d 177, w. r. n. r. e.; Zamora v. Thompson, Tex.Civ.App., 250 S.W.2d 626; Panhandle & Santa Fe Ry. Co. v. Karr, Tex.Civ.App., 257 S.W.2d 486; Peters v. Chicago, R. I. & P. R. Co., Tex.Civ.App., 257 S.W.2d 860, w. r. n. r. e.
It appears that this case has been fully developed. All the material facts concerning the crossing accident are undisputed. No good purpose could be served, by *764remanding the case for a new trial. The writer is of the opinion that the case should be reversed and rendered in favor of appellant, for the reasons stated above.