Why doesn't device_create return error when a file already exists?

Question

I am writing a PCI driver with a character device for an interface (Linux 4.9.13). Here's the scenario that bothers me:

1. Run touch /dev/foo0 which creates a normal file in the /dev directory.

2. Load the driver module. Here's a pseudo code representing what happens there (pretty standard character device registration):

   // When the module is initialized:
   alloc_chrdev_region(&dev, 0, 256, "foo");
   class = class_create(THIS_MODULE, "foo");
   
   // Later, when a suitable PCI device is connected the probe function 
   // calls the following functions:
   cdev_init(dev->md_cdev, &fops);
   dev->md_devnum = MKDEV(major, 0 + index);
   res = cdev_add(dev->md_cdev, dev->md_devnum, 1);
   dev->md_sysfsdev = device_create(class, 0, dev->md_devnum, 0, "foo%d", index);
   

   Details:

   • index is just another free index

What seems weird to me is nothing raises an error that there is already a /dev/foo0 file which is not a character device. I do check all the errors (I think so) but I omitted related code for the sake of conciseness. Everything works as expected if I do not run touch /dev/foo0. Otherwise, I can neither read nor write to the device.

Why is it so? Shouldn't device_create return an error or at least create /dev/foo1 instead?