The opinion
Concurring Opinion
Arterburn, J.
I concur in the majority opinion, and do not construe it as making a railroad liable every time it stops a line of freight cars across a highway. The allegations in the complaint in this case are different in some respects from those in the cases of: C. C. C. & St. L. Ry. Co. v. Gillespie (1930), 96 Ind. App. 535 , 173 N. E. 708 ; New York Central R. R. Co. v. Casey (1938), 214 Ind. 464 , 14 N. E. 2d 714 ; New York Central Railroad Co. v. Gardner (1940), 107 Ind. App. 366 , 24 N. E. 2d 811 ; N. Y. Central R. R. Co. v. Dyer, Admr. (1938), 214 Ind. 708 , 14 N. E. 2d 718 .
I do construe the opinion as placing the same responsibility on railroads to use care as is placed on motorists on the highways.
The method (and speed) of travel on the highways has changed considerably over the last fifty years. The acts which are required to exercise due care by railroads, as well as by travelers on the highway, have changed as travel has changed from the horse-drawn vehicles on gravel roads to the faster-moving motor car on smooth paved roads. Likewise the method and means of signaling and warning of danger has improved during the years by the perfection of various automatic devices, lights, flares, reflectors and luminous *546 paints to the extent that such uses are now- reasonable, where previously they were not practical.- '
In this age, regardless of any státuté, it would be negligence at common law for anyone to’ leave a large, yet indistinguishable, object on the traveled portion of a highway on a dark night (be it a motor vehicle or a railroad car)- without warning other travelers of the deceptive condition. Whether or not such-a condition existed as a result of an emergency and the injury occurred before the danger could be eliminated, is a matter- of /defense.
“The' statutory limitations on the right to park / or stop -do not pre-empt the entire field, and the common law limitations on the right to use highways still prevail except where they have been expressly abrogated. Accordingly, a traveler’s right to stop on a public highway at any place not prohibited by statute is determined by the reasonableness of his conduct under the circumstances and by the extent that such conduct interferes with or prevents the free use of the road by others with equal rights.” West’s Indiana Law Encyclopedia, §70, Automobiles, p. 420.
If it is not contributorily negligent for a motorist to drive into a tractor-trailer painted battleship gray with a tarpaulin over the load, parked on a paved highway on a dark, rainy night without lights or warnings, then the same is true where a freight car is stopped on a highway and disguised under similar conditions. Northwestern Transit, Inc. v. Wagner (1945), 223 Ind. 447 , 61 N. E. 2d 591 ; Cushman Motor Delivery Co. v. McCabe, Admr. (1941), 219 Ind. 156 , 36 N. E. 2d 769 .
The fact that the stopped vehicle is a common carrier does not change the duty to use care nor to observe the applicable statutes. Evansville, etc. Ry. Co. v. Woosley (1950), 120 Ind. App. 570 , 93 N. E. 2d 355 .
*547 There should-not be one rule of liability for motorists or other persons creating dangerous conditions on highways and. a different rule for railroads creating a like condition. The complaint with the reasonable in-tendments to be drawn therefrom states a cause of action in negligence under the principles established in this state.