Murray

Before the court of appeal, which had original jurisdiction of this case, the following decision was rendered by Hart, J.:

A hearing was granted by this court, principally because of the very urgent insistence of the respondent that the decision of the court of appeal was revolutionary and declared as an inflexible rule of law that the driver of a motor vehicle approaching a steam railroad crossing was negligent if, his vision being obstructed, he did not stop his vehicle, leave it, and go forward for purposes of observation. Such, of course, is not the adopted rule of law in this state, but a fair reading of the opinion of the court of appeal will disclose that it does not lay down this proposition as being the law. Its discussion is addressed to a motion for a nonsuit under the particular facts of the case before it, and it is held that the motion should have been granted because of the manifest contributory negligence of the driver of the motor vehicle in doing what he did. It is unnecessary in detail to recapitulate the facts as above set forth. But in brief the driver was approaching a crossing which he knew and declared to be an especially dangerous one. He was approaching…

I concur in the judgment and also in the opinion, except that portion thereof which appears to hold that, upon the facts of this case, the language of the district court of appeal to thé effect that if the view of the plaintiff was so obstructed by the mill building that he could not otherwise see the approaching engine in time, it was his duty, as matter of law, to alight from his machine and go on foot to a point where he would have an unobstructed view, is sound in law. To my mind the best that can be said upon this matter for defendant is that the question whether as a reasonably careful man he should have so done was one for the jury. However, this language is not essential to the conclusion that plaintiff was guilty of contributory negligence as is sufficiently shown by what is said in the opinion.