I am unable to agree with the majority in the holding that the doctrine announced in Texas N. O. R. Co. v. Stratton and Texas N. O. R. Co. v. Berry should be applied to the facts of this case, in so far as the issue of actionable negligence is concerned.
In those cases the train was in motion and nothing had transpired which could be said to have brought home to the servants of the railway company any notice of danger.
In the present case appellee's train had been run into by an automobile going in a westerly direction while the train was in motion and the automobile had become wedged under one of the cars so that it could not be and was not moved for a period of more than five minutes, the limit for willful blocking of crossings fixed by article 787, Penal Code.
With such a condition existing the writer cannot agree that, as a matter of law, appellee was under no duty to take any steps to warn the users of the public highway of the presence of its car thereon. Such a doctrine has not been applied to others who have left unguarded obstructions upon the public highways of our state, and I cannot believe that the mere fact that this accident occurred on a railroad crossing and the obstruction happened to be a box car would entirely relieve appellee from exercising any care to prevent collisions between its box car and the motor vehicles which it knew were being operated continuously on the highway.
I do agree, however, that deceased, under the holding in Texas Mexican Ry. Co. v. Hoy and Wichita Valley Ry. Co. v. Fite, was guilty of contributory negligence as a matter of law, and that therefore the judgment of the trial court should be affirmed.