The opinion
On Motion for Rehearing.
It should be said that it was not our purpose in the original opinion to declare valid the act of 1917, requiring automobile drivers to reduce speed when approaching obscured railroad crossings. The question of the va-t lidity of that act was not raised, was not intended by us to be passed upon, nor was the holding that the deceased was guilty of contributory negligence as a matter of law based upon the validity or operation of the act. We simply hold that the intention of the Legislature in passing the act was .obviously to require the automobile driver to reduce speed when nearing crossings Nat which the driver’s view of approaching trains was obscured; that the obvious purpose was to give the traveler the same character of protection assured' him by crossing gates and crossing flagmen, where those in-strumentalities are employed. It should be said, further, that the act of 1917 was cited in the original opinion, not for the purpose of holding that the deceased was guilty of contributory negligence as a matter of law because he violated the provisions of that act, but for the purpose of emphasizing the policy and the rule requiring drivers to take extraordinary precautions in nearing crossings where their means of . ascertaining whether or not trains are approaching are lessened by obstructions. The conclusion that the deceased was guilty of contributory negligence as a matter of law was arrived at from the physical facts in connection with the undisputed testimony presented in the record, and independent of the act of 1917, the consideration of which serves only to emphasize that negligence.
In connection with the question of contributory negligence, appellee in her motion cites, quotes from, and strongly relies upon the case of I. D. Barron v. H. E. & W. T. Ry. Co., 249 S. W. 825 , recently decided by Section B of the Commission of Appeals, in an able and thoroughly interesting opinion written by Judge Powell, from which Presiding Judge McClendon dissented. The case went up on writ of error to the Beaumont Court of Civil Appeals ( 235 S. W. 335 ). But we do not regard our disposition of that question in this case as in any sense in conflict with the decision in the Barron Case. In the latter case Barron, a pedestrian, was working his way through a somewhat complicated situation, and while taking care to avoid danger on one track was struck when he stepped upon another track near by, and a majority of the Commission 'of Appeals, according to a copy of their opinion furnished us by appellee, held that in this peculiar situation the facts raised the issue of contributory negligence, to be determined by the jury. In the instant case there were no complications in deceased’s situation; there was nothing to distract his attention; nor was there any evidence of any object or occurrence which could have rendered his situation in the least uncertain, or that could possibly have interfered with the sane, normal use of his judgment and faculties. The crossing was situated in a sparsely settled locality. There was only one railroad track, within 50 to 75 feet of which he had been traveling for a distance of more than a mile before he undertook to cross it, and yet in approaching and going upon the crossing he was not shown . to have done one single. act to ascertain if a train was approaching, or to avoid a collision with the train when it did approach. Or, as was said by the Commission of Appeals in Railway v. Price, 240 S. W. 525 , and reiterated by the same court in the Barron Case, supra, the deceased drove onto the crossing in front of the approaching, train, “under circumstances which present no excuse for his not discovering it.” We regard the opinion in the Barron Oase as def- - inite authority in support of the disposition we have made of this case. ¡
The motion is overruled.