Appellant (plaintiff below) a citizen of the State of Oregon, instituted suit in the district court against appellee (defendant below), a California corporation, to recover damages for personal injuries alleged to have been sustained in a railroad crossing collision when a passenger train on which he was a passenger collided with appellee’s tank truck and tank trailer which was crossing the railroad tracks. Jurisdiction of the district court was properly invoked under Title 28 U. S.C. § 1332.

Following trial to a jury, a general verdict was returned in favor of appellee and judgment upon the verdict was entered in its favor. Following denial by the district court of a motion for new trial, appellant filed a timely appeal. This Court’s jurisdiction rests upon Title 28 U.S.C. §§ 1291 and 1294.

The accident occurred at a railroad crossing located in an industrial area of gasoline and oil storage plants near Portland, Oregon, at about 4:15 P.M. The railroad crossing consisted of four sets of tracks. The two inner sets of tracks were for main line travel and on each side of the main line tracks, and parallel thereto, was a set of tracks used for switching purposes. The tracks ran in a general northerly-southerly direction. Doane Street crossed the tracks in a general easterly-westerly direction. The railroad maintained at the crossing a flashing red light “STOP” signal on each side of the railroad tracks and an automatic, continuously lit “STOP” sign on the easterly side of the tracks and the southerly side of Doane Street, but no barrier, flagman, or two-train signal were maintained at the crossing.

The diesel tank truck and tank trailer had an overall length of 60 feet and its maximum speed was three miles per hour. At the time of the accident, the tank truck was loaded with gasoline and the tank trailer with diesel oil. It was being operated by an experienced, longtime employee of appellee. He was thoroughly familiar with the crossing. He had operated a tank truck and tank trailer over the crossing a number of times each day for a period of several years. Shortly before the accident the tank truck and tank trailer was traveling from east to west on Doane Street. Weather conditions were good.

As the operator of the tank truck and tank trailer approached the track crossing, a freight train traveling north on the most easterly set of the main line tracks was slowly crossing Doane Street. The flashing red light “STOP” signals were operating. The operator stopped the equipment behind two stopped automobiles. When the rear car of the freight train cleared the crossing, the two automobiles proceeded across the tracks followed closely by the tank truck and tank trailer traveling about three miles per hour. The flashing red light “STOP” signal on the westerly side of the crossing continued to operate. Because of switching operations of the railroad company, the “STOP” signals customarily operated day and night, “hour after hour,” even though no train was approaching the crossing. When the freight train had cleared the crossing by an estimated 20 to 50 feet and the tank truck was on or approaching the second set of main line tracks, a passenger train was approaching the crossing from the north at a speed of about 35 miles per hour on the second set of main line tracks. The train’s automatic air bell was continously ringing and the whistle was being intermittently blown from about 1,000 feet north of the crossing but were not heard by the operator. When the cab of the tank truck was on or near the first track of the westerly set of main line tracks, the operator first became aware of the approach of the passenger train which was traveling on the westerly set of the main line tracks. He made no attempt to speed up by shifting gears for fear of missing the gear. The engine crew of the approaching train saw the tank truck at a distance estimated by the engineer of two to three hundred feet, at which time the air brakes of the train were applied. The engine struck the tank trailer and stopped about 500 feet south of the crossing, with a portion of the rear car within the crossing.

Appellant was traveling as a passenger on the train. He testified that he was in a stooped position preparatory to getting his luggage and alighting from the train when the accident occurred, and that because of the emergency stopping of the train he was thrown to the floor and sustained the injuries of which he complains.

Although appellant noted seven specifications of error, only five are presented in appellant’s brief. Of these, two relate to instructions refused, one to the denial of appellant’s motion for new trial, one to the admission into evidence of a deposition taken by appellant of his attending physician, and one to the admission of evidence concerning appellant’s retirement and characterization thereof by the district court.

The first alleged error concerning instructions of which appellant complains relates to the liability of appellee. Appellant contends that the court should have withdrawn from consideration by the jury the issue of appellant’s negligence and should have instructed the jury that appellee, as a matter of law, was guilty of negligence proximately causing the collision, and leaving for consideration by the jury on the issue of liability only whether appellant suffered injury or damage proximately caused by the collision. An instruction offered by appellant so instructing was refused by the court.

Did the" district court err? Appellee contends that the action of the district court must be sustained primarily on the authority of Fish v. Southern Pacific Co., 173 Or. 294 , 143 P.2d 917 (1943), rehearing denied 145 P.2d 991 (1944); and Doty v. Southern Pacific Co., 186 Or. 308 , 207 P.2d 131 (1949).

These decisions were construed by the Supreme Court of Oregon in McNealy v. Portland Traction Company, 213 Or. 659 , 327 P.2d 410 (1958). In the course of the opinion that court stated (327 P.2d at pp. 412-414):

In reference to the McNealy decision, appellee states in his brief that “Fish and Doty were held to have established the rule that there is no need to stop and reconnoiter, although the duty to look and listen remains.” (Emphasis added.)

The operator of the tank truck and tank trailer testified that as he proceeded across the tracks, he looked to his right but because his vision in that direction was obscured by the slow moving freight train, he did not see the approaching passenger train until the cab of the tank truck was on or near the first track of the westerly set of main line tracks. If the only duty which the law placed upon the operator was to look, we would concede “ * * * that reasonable minds may differ on whether or not under these circumstances a reasonably prudent person would have proceeded to the crossing, relying upon the use of his other senses to warn him.” McNealy v. Portland Traction Company, supra, 213 Or. 659 , 327 P.2d at page 414 .

If the operator’s failure to see had been solely caused by blacked out windows in his cab which prevented him from seeing anything outside of the cab, could it be said that unusual conditions at the crossing excused him from the duty to look? We believe not.

As we construe the law of the State of Oregon, there is placed upon a motorist crossing or proceeding to cross a railroad crossing, not only the duty to look but also to listen. McNealy v. Portland Traction Company, supra; Schwesinger v. Hebert, 220 Or. 149 , 348 P.2d 249 (1960). Such is also the view of the able District Judge who presided at the trial as reflected in his instructions to the jury. On this subject the District Judge stated in part:

There is no conflict in the evidence that the train’s automatic air bell was continuously ringing and the whistle was being intermittently blown from about 1,000 feet north of the crossing. The operator testified that he did not hear these warnings of an approaching train although he does not deny that they were given. There is nothing in the record which even remotely suggests that his failure to hear was occasioned by extraneous noises or other unusual conditions surrounding the crossing.

On direct examination the operator testified as follows:

On cross-examination the operator gave the following testimony:

On redirect examination appears the following:

Did the operator discharge the duty placed upon him to listen? We be lieve that under Oregon law, a motorist who proceeds across a railroad crossing when his own vehicle is making so much noise that he can hear no noise or warnings from outside of his cab, is in no different position than a motorist who makes the same journey without listening. In both instances he has failed to discharge one of the duties placed upon him under the law of the State of Oregon. May such failure be excused because the jury may have found the crossing to be one of unusual hazard? We find nothing in the record indicating that any fact, condition or circumstance surrounding the crossing or the accident in any manner,- or to any extent, caused or contributed to the failure of the operator of the tank truck to hear the warnings given by the approaching train. Such failure was caused solely by the noise made by the tank truck and its motor. If the failure of the operator to hear the warnings emitted from the approaching passenger train had been caused by extraneous noises — such as, for example, noises made by other trains in the area or other vehicles in the crossing or by nearby industrial establishments — it might be argued that reasonable minds might differ whether or not under these circumstances a reasonably prudent person would have proceeded to the crossing, relying upon the use of his other senses to warn him. Such reasoning, however, is not applicable to the failure to discharge a duty imposed by law when such failure is unrelated to any unusual circumstance or condition surrounding the crossing or the accident.

We are constrained under the facts and Oregon law as we understand it, to hold that the district court erred in refusing the requested instruction. In addition to cases cited, see also Murphy v. Southern Pacific Co., 223 Or. 522 , 355 P.2d 236, 238 ; and Bass v. Southern Pacific Co., 196 F.Supp. 763 (1961) (D.C.Or.).

The judgment is reversed and the cause remanded to the district court with instructions to grant appellant a new trial limited to the issue of whether or not appellant suffered injury or damage proximately caused by the collision, and to the issue of damages.

We deem it unnecessary to pass upon the assigned error relating to the admissibility of the doctor’s deposition. Appellant’s counsel conceded at oral argument that because of the intervening death of the deponent, such deposition would be admissible in the event of a new trial. We likewise deem it unnecessary to pass upon the admissibility of evidence relating to appellant’s retirement since that subject may or may not appear, or appear in different form, on the new trial.