Spendlove

I dissent. It has heretofore been the es tablished law of this state that, in the absence of extraordinary circumstances such as existed in Toschi v. Christian (1944), 24 Cal.2d 354 [ 149 P.2d 848 ], and in Startup v. Pacific Electric (1947), 29 Cal.2d 866 [ 180 P.2d 896 ], a person who approaches railroad tracks with a substantially unobstructed view, who sees such tracks, looks for traffic thereon, and then endeavors to cross them immediately before an approaching train, which is not only an actual hazard but which also is plainly visible and obviously an imminent peril, is guilty of negligence as a matter of law. (See Guyer v. Pacific Electric Ry. Co. (1938), 24 Cal.App.2d 499, 502 [ 75 P.2d 550 ] ; Heroux v. Atchison, T. & S. F. Ry. Co. (1938), 28 Cal.App.2d 401, 405 [ 82 P.2d 620 ]; Jones v. Southern Pacific 'Co. (1917), 34 Cal.App. 629, 631 [ 168 P. 856 ] ; Roster v. Southern Pacific Co. (1929), 207 Cal. 753 , 761 et seq. [ 279 P. 788 ].)

In Toschi v. Christian the circumstances showed a six-track railroad-yard crossing, switching operations progressing almost constantly, the employment by the railroad of two flagmen whose duties involved traffic control on the railroad as…

Plaintiffs were injured when the automobile in which they were riding was struck by an electric car operated by defendant. The actions were consolidated for trial, and the appeal is taken from judgments of nonsuit.

The accident occurred in the afternoon of a clear day at a crossing where a public street running east and west intersected defendant’s private right of way. There were four sets of tracks on the right of way; tracks one and two on the east carried northbound traffic, and tracks three and four to the west were used for southbound traffic. A wigwag signal was maintained at the crossing to warn vehicles of approaching trains.

The automobile was traveling west, and when it reached the right of way the wigwag was operating and a southbound car was standing on track four. The driver stopped to allow the southbound car to pass. At this point he could see 300 to 400 feet northward, but there was a trolley pole with a switch box on it directly opposite the driver which partially obstructed the view in that direction. When the wigwag stopped operating, the driver looked to the north and to the south and saw no approaching trains, and he listened for but did not hear any…