Griffin Smith, C. J.
The appeal is from a $20,000 judgment to. compensate personal injuries alleged to have been sustained by appellee as the result of a crossing collision. It is disposed of by holding that appellants were correct in their contention that there should have been an instructed verdict for the defendants.
The evidence discloses a situation which enjoined upon the trial court the duty of holding, as a matter of law, that plaintiff’s negligence was equal to or greater than that of the railroad operatives.
The case is controlled by Missouri Pacific Railroad Company v. Davis.
Appellee, 47 years of age, had for more than ten years been secretary-treasurer and general manager of a wholesale grocery business at Pocahontas. After attending a stockholders’ meeting the night of January 21, 1938, he went to a picture show and got Vina Davis, and the two, in appellee’s automobile, proceeded to a resort a short distance east of Hoxie described by witnesses as a honky-tonk,
where merrymaking was somewhat unrestrained. Dancing and other forms of entertainment were engaged in. Appellee, although married, was not living with his wife.
About one o ’clock in the morning appellee and others began leaving the rendezvous. For reasons not pertinent to this opinion appellee did not take the Davis girl home, but after having spent fifteen minutes trying to get his oar key out of the lock of the door, (a task he was unable to complete without assistance) he drove off alone. Some of his witnesses say he was traveling 40 miles an hour when he approached the crossing, and that he did not decrease this speed. Others are more conservative. Appellee says he left his companions and traveled at a “moderate” rate of speed, perhaps 20 miles per hour. The highway is east and west. The railroad is north and south. The crossing is near the depot. As appellee neared the railroad two or three automobiles were coming in his direction. His testimony is that “their lights were in front of me.” There is this statement: “I continued to look and listen for trains at both ends of the railroad and on both sides of the highway until I was practically on the crossing. One car passed going in the opposite direction and just got across the track as I drove on. It was traveling east on the south side of the highway, and I was traveling west on the north side. I was nearly on the track at the time.”
Appellee insists that he hadn’t seen or heard the train; that “if there were a¡ny lights of a train shining over the crossing it was a mighty dim light. ”
Other witnesses for the plaintiff described the train’s headlights as “dim”; or “I didn’t see any”; or used terms of similar uncertainty.
On cross-examination appellee testified that the windows in his automobile were all up [closed]; that they were frosted with [appellee’s] breath on the inside of the coupe and with the mist on the outside; that if his windshield wiper was working he didn’t have it turned on.
Appellee was cross-examined about statements he had made to appellants’ claim agent, but vigorously' denied all admissions that were in conflict with the theory upon which the suit was being tried. The statement was dated February 25, 1938. At that time appellee was in his office. In it appellee was quoted as having said he drove to within about ten feet of the track and stopped and looked both ways; that he saw the “red flasher signals going on and off, but did not see or hear any train; and then proceeded upon the track.”
It is conceded that there were no permanent impediments on or near the railroad to obstruct a clear view of the crossing; that no faulty construction or negligence in maintenance contributed to the transaction; and photographs indicate the terrain was virtually level where the highway crosses the railroad.
Although statements ascribed to appellee in a report compiled by an agent named Jones are vigorously denied, appellee admitted authorship of a letter dated March 21,1938, in which he said:
“Mr. Jones called on me about three weeks ago, and I gave him, to the best of my knowledge, the facts as Tthey] happened, . . . The amount I asked for in my satement to Mr. Jones was a reasonable amount.”
In the statement, admitted as evidence after objections had been withdrawn, anpellee proposed a settlement as follows: “. . . difference [on automobile] $677.40; total hospital, doctor, and ambulance bills, together with $50 as cost of a set of false teeth knocked out; one watch, $45; one pair of glasses broken, $25; room rent at $16 per month for the time I am unable to work, which is yet undetermined. . . . Approximate total, $829.40. plus hospital bills, etc.”
When asked about the statement, appellee said: ‘I told him [the account was] for settlement of the automobile, but I didn’t tell him [it was in] full settlement of the claim. ’ ’
The first paragraph in appellee’s letter of March 21st is: “It has been over two months now since a claim was. called to your attention regarding an accident which occurred to the writer January 21, 1938. You sent me a letter on February 17th advising that a claim agent would call on me for the purpose of checking into the matter of whether or not I have a claim. ’ ’
The injuries alleged were: “Left cheek bone, and left .jaw bones were broken; face and left eye were severely bruised, contused, and crushed; left eyebrow was split, lacerated and contused; five ribs on left side were broken; pelvis bone was broken and shattered in several places; was caused to spend many weeks in clinics and hospitals.” Appellee’s physician testified that he had two ribs broken, and that he sustained some of the other injuries enumerated. He mentioned one or - two additional injuries, and estimated the patient’s disability was 11 or 12 per cent.
Appellee testified that he “got hurt slightly” in a railroad crossing accident and sued the Frisco system in a Missouri court for $7,500. In that case he was hit by a train at Pocahontas. The ‘ ‘ slight” nature of the injuries alleged is shown in the margin.
In spite of the fact that the suit was tried and lost on the complaint and evidence, appellee denied knowledge of the allegations. When asked if he claimed “all of those injuries in that lawsuit,” ,the reply was that he did not.
There is the additional statement by appellee: “I have had other automobile accidents a few times.” They were of a comparatively minor nature.
The engineer testified that he had applied the brakes for a station stop, and had slowed to perhaps 20 miles per hour. When within 100 feet of the crossing he saw an automobile cross in front of the engine. Another was close behind. The second can drove up to the crossing and stopped. — “When it stopped I released the brakes, and just about the time the pilot was reaching the crossing, the car that had stopped on the highway was moving. ahead and the car and the engine came together on the crossing. The car had very bright headlights. I could see [it] plainly.
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Griffin Smith, C. J.
The appeal is from a $20,000 judgment to. compensate personal injuries alleged to have been sustained by appellee as the result of a crossing collision. It is disposed of by holding that appellants were correct in their contention that there should have been an instructed verdict for the defendants.
The evidence discloses a situation which enjoined upon the trial court the duty of holding, as a matter of law, that plaintiff’s negligence was equal to or greater than that of the railroad operatives.
The case is controlled by Missouri Pacific Railroad Company v. Davis.
Appellee, 47 years of age, had for more than ten years been secretary-treasurer and general manager of a wholesale grocery business at Pocahontas. After attending a stockholders’ meeting the night of January 21, 1938, he went to a picture show and got Vina Davis, and the two, in appellee’s automobile, proceeded to a resort a short distance east of Hoxie described by witnesses as a honky-tonk,
where merrymaking was somewhat unrestrained. Dancing and other forms of entertainment were engaged in. Appellee, although married, was not living with his wife.
About one o ’clock in the morning appellee and others began leaving the rendezvous. For reasons not pertinent to this opinion appellee did not take the Davis girl home, but after having spent fifteen minutes trying to get his oar key out of the lock of the door, (a task he was unable to complete without assistance) he drove off alone. Some of his witnesses say he was traveling 40 miles an hour when he approached the crossing, and that he did not decrease this speed. Others are more conservative. Appellee says he left his companions and traveled at a “moderate” rate of speed, perhaps 20 miles per hour. The highway is east and west. The railroad is north and south. The crossing is near the depot. As appellee neared the railroad two or three automobiles were coming in his direction. His testimony is that “their lights were in front of me.” There is this statement: “I continued to look and listen for trains at both ends of the railroad and on both sides of the highway until I was practically on the crossing. One car passed going in the opposite direction and just got across the track as I drove on. It was traveling east on the south side of the highway, and I was traveling west on the north side. I was nearly on the track at the time.”
Appellee insists that he hadn’t seen or heard the train; that “if there were a¡ny lights of a train shining over the crossing it was a mighty dim light. ”
Other witnesses for the plaintiff described the train’s headlights as “dim”; or “I didn’t see any”; or used terms of similar uncertainty.
On cross-examination appellee testified that the windows in his automobile were all up [closed]; that they were frosted with [appellee’s] breath on the inside of the coupe and with the mist on the outside; that if his windshield wiper was working he didn’t have it turned on.
Appellee was cross-examined about statements he had made to appellants’ claim agent, but vigorously' denied all admissions that were in conflict with the theory upon which the suit was being tried. The statement was dated February 25, 1938. At that time appellee was in his office. In it appellee was quoted as having said he drove to within about ten feet of the track and stopped and looked both ways; that he saw the “red flasher signals going on and off, but did not see or hear any train; and then proceeded upon the track.”
It is conceded that there were no permanent impediments on or near the railroad to obstruct a clear view of the crossing; that no faulty construction or negligence in maintenance contributed to the transaction; and photographs indicate the terrain was virtually level where the highway crosses the railroad.
Although statements ascribed to appellee in a report compiled by an agent named Jones are vigorously denied, appellee admitted authorship of a letter dated March 21,1938, in which he said:
“Mr. Jones called on me about three weeks ago, and I gave him, to the best of my knowledge, the facts as Tthey] happened, . . . The amount I asked for in my satement to Mr. Jones was a reasonable amount.”
In the statement, admitted as evidence after objections had been withdrawn, anpellee proposed a settlement as follows: “. . . difference [on automobile] $677.40; total hospital, doctor, and ambulance bills, together with $50 as cost of a set of false teeth knocked out; one watch, $45; one pair of glasses broken, $25; room rent at $16 per month for the time I am unable to work, which is yet undetermined. . . . Approximate total, $829.40. plus hospital bills, etc.”
When asked about the statement, appellee said: ‘I told him [the account was] for settlement of the automobile, but I didn’t tell him [it was in] full settlement of the claim. ’ ’
The first paragraph in appellee’s letter of March 21st is: “It has been over two months now since a claim was. called to your attention regarding an accident which occurred to the writer January 21, 1938. You sent me a letter on February 17th advising that a claim agent would call on me for the purpose of checking into the matter of whether or not I have a claim. ’ ’
The injuries alleged were: “Left cheek bone, and left .jaw bones were broken; face and left eye were severely bruised, contused, and crushed; left eyebrow was split, lacerated and contused; five ribs on left side were broken; pelvis bone was broken and shattered in several places; was caused to spend many weeks in clinics and hospitals.” Appellee’s physician testified that he had two ribs broken, and that he sustained some of the other injuries enumerated. He mentioned one or - two additional injuries, and estimated the patient’s disability was 11 or 12 per cent.
Appellee testified that he “got hurt slightly” in a railroad crossing accident and sued the Frisco system in a Missouri court for $7,500. In that case he was hit by a train at Pocahontas. The ‘ ‘ slight” nature of the injuries alleged is shown in the margin.
In spite of the fact that the suit was tried and lost on the complaint and evidence, appellee denied knowledge of the allegations. When asked if he claimed “all of those injuries in that lawsuit,” ,the reply was that he did not.
There is the additional statement by appellee: “I have had other automobile accidents a few times.” They were of a comparatively minor nature.
The engineer testified that he had applied the brakes for a station stop, and had slowed to perhaps 20 miles per hour. When within 100 feet of the crossing he saw an automobile cross in front of the engine. Another was close behind. The second can drove up to the crossing and stopped. — “When it stopped I released the brakes, and just about the time the pilot was reaching the crossing, the car that had stopped on the highway was moving. ahead and the car and the engine came together on the crossing. The car had very bright headlights. I could see [it] plainly. He was possibly 200 feet from the track when I first saw him. . . . He slowed down, and when he got pretty close to the crossing I didn’t know whether he was going to stop or not; 1 thought maybe he would follow the other man across; but he slowed down and stopped, and I released the brakes. I thought he came to a complete stop. After it appeared to me that he was going to stop, and didn’t, then I couldn’t stop. . . . It looked to .me like he had stopped dead still. . . . When I saw him start forward over the crossing I put the brakes in emergency. I put on all the braking power I had. ’ ’
Other witnesses corroborated the engineer in respect of speed, headlights, etc.
In spite of the fact that appellee — -a married man with three children — was patronizing a honky-tonk at one o’clock in the morning with a girl companion; that he “hadn’t been going with her very much”; that his own witnesses testified he drove over the crossing at a speed of forty miles an hour; that disinterested'witnesses affirmed the train hell was being rung and [he whistle blown; that others said they saw the signal lights burning — regardless of contradictions and denials in appellee’s testimony and the reasonable construction to be placed upon other evidence — in disregard of every syllable of evidence adduced in behalf of appellants, we must say that “substantial” testimony was introduced in support of appellee’s contentions, and under our superior system of .jurisprudence it was for jurymen to resolve these conflicts as their reasonable judgments suggested, under instructions of the court that a verdict could only be returned if supported by a preponderance of the testimony. The verdict, having been for the plaintiff, should have been set aside by the trial court if the quantum of evidence — a preponderance — was lacking.
We must indulge an additional assumption: that the court thought the evidence preponderated in favor of the plaintiff.
We reverse only for errors of law, the jury being the sole judge of factual matters, and of the credibility to be given the testimony of witnesses. If there is substantial evidence to support the jury’s findings, and no errors of law appear, we do not reverse because, in our judgment, there is not a preponderance of evidence in favor of the verdict.
In the instant case, therefore, we must assume that the bell was not being rung; that the whistle was not blown; that the flash light system (through some mysterious caprice of mechanics) had suspended operation; that the engine headlight was dim; that appellee slowed to a speed of Í5 or 20 miles an hour as he crossed the tracks; that he looked and listened, and did not see a train nor hear a signal, and that, having thus reassured himself, he proceeded upon the .track at the very instant a passenger engine (which the undisputed evidence shows was not traveling more than 20 miles an hour) engaged the crossing.
The circumstances suggest the questions: ‘ ‘ Why did appellee not see a train so obviously present? Was it because the bell was not being rung or the whistle blown? Was it through failure of the flash light system to function? Did the engine’s dim headlight prevent the natural warning which an efficient light might have given?
Appellee himself has answered the query. The night was somewhat murky. The windows of his automobile were closed. It was chilly outside, and moisture from breathing within the closed cab “frosted” the windows and visibility was interfered witli because of mist on the outside. Almost at the instant appellee arrived at the crossing another car, coming from the opposite direction, cleared the tracks?. Its headlights were shining. This car was between appellee and the oncoming train! At least one other automobile was on the west side of the tracks, and its headlights were shining upon appellee. With the interior of his cab windows frosted, and with mist blurring from without, appellee .did not resort to the precaution of testing his windshield wiper to ascertain if it was in wprldng order. His testimony is to the contrary.
With knowledge of the exact position of the tracks, and in the situation just described, appellee must have relied upon his sense of hearing in preference to his sense of sight, and not having-heard a bell or a whistle (which we must assume were not being operated) he dashed over the crossing at a time when another automobile obstructed the view which assuredly would have been his had the automobile in question not been where it was, and if appellee’s car windows had not been frosted and his windshield wiper inactive.
Counsel for appellee urge inapplicability of the Davis Case, because the collision there occurred in the daytime, while here it was night. It would be inaccurate to say, “that makes no difference.” In certain conditions it might. It seldom happens that two crossing collisions are exactly alike. Each must be tried in view of the prevailing facts and circumstances, and the result must be tested by accepted principles of law.
To say in-the instant case that appellee’s negligence was not, as a matter of law, equal to or greater than that, of appellants would be to disregard human experiences and known factors of physical operations, and this we cannot do. Of course, comparative negligence is a matter of jury determination, but there must be substantial evidence to sustain a verdict that a defendant’s negligence was of a higher degree than that of the plaintiff, and such evidence is lacking* in the case before us.
The judgment is reversed, and the cause dismissed.
Humphreys and Mei-iaffy, JJ., dissent.