The majority opinion states: "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."
Another well established rule of this court is that in testing the sufficiency of evidence to determine whether it supports the verdict, we consider the evidence in the light most favorable to the appellee, and we give the evidence of the appellee its highest probative value in favor of the appellee, and indulge every inference deducible therefrom to support the finding of the jury. Safeway Stores v. Mosley, 192 Ark. 1059, 92 S.W.2d 1136.
"This court has many times held that, where there is any substantial evidence to sustain the verdict of the jury, the verdict will not be disturbed, although this court might think that the weight of the testimony was the other way. This court does not pass on the credibility of the witnesses nor the weight of their testimony." Southwestern Bell Tel. Co. v. McAdoo, 178 Ark. 111,10 S.W.2d 503; Ark. Power Light Co. v. Orr, 178 Ark. 329,11 S.W.2d 761; Mo. Pac. Rd. Co. v., Juneau, 178 Ark. 417,10 S.W.2d 867; Mo. Pac. Rd. Co. v. Edwards, 178 Ark. 732,14 S.W.2d 230 These are only a few of the many cases in which we have held that the jury is the judge of the credibility of the witnesses and the weight to be given to their testimony, and that if there is any substantial evidence to sustain the verdict, it will not be disturbed by this court, although this court might believe that it was against the preponderance of the evidence. The reason for this rule is clear. We do not pass on the credibility of the witnesses nor the weight of their testimony; we do not see them, hear them testify, know nothing of their conduct and appearance on the witness stand. The jury is a better judge as to where the preponderance of the evidence lies than the Supreme Court. *Page 355
I think that the majority opinion views the evidence in the light most favorable to the appellant. Just before it announced the rule above referred to, in the majority opinion it is stated: "The verdict, having been for the plaintiff, should have been set aside by the trial court if the quantum of the evidence — preponderance — was lacking."
Who determines where the preponderance of the evidence lies? We have always held that the jury should determine that question, and if there is any substantial evidence to support the verdict, it should be sustained.
The majority, in its opinion, says that 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, etc., * * * a verdict could only be returned if supported by a preponderance of the testimony.
If the majority had desired, or intended, to consider the evidence in the light most favorable to the appellee, it would have stated that this married man had been separated from his wife for five years, and they lived in different towns. In order to make sure that persons who read the opinion will know what "honky-tonk" means, it states in footnotes: "Webster's dictionary defines honky-tonk as a `low drinking resort.'" It thereby implies that the place appellee attended was a "low drinking resort." The undisputed evidence shows that it was a dance hall where they sold cold drinks, and the evidence further shows that they did not begin to sell beer at this place until June, after the accident in January. It occurs to me that in view of the evidence which shows that it was not a "low drinking resort," it is a bit unfair to insinuate that it is, and I think also that in doing that, the court was overlooking the rule that we should view the testimony in the light most favorable to the appellee.
It is also stated in the majority opinion that the "flash light system (through some mysterious caprice of mechanics) was not in order." There is not a word in the record indicating that the flash light system was not in order, because of "some mysterious caprice of *Page 356 mechanics." Several witnesses testified that it was not operating, and one witness testified very positively that he had seen it fail before this accident, and had seen it fail since the accident.
The majority opinion then says that appellee had other accidents, and the nature of the slight injuries testified about in one case by appellee are shown in the margin.
The pleadings in the case mentioned in the margin were admissible for the purpose only of affecting the credibility of the witness, and if this court does not pass on the credibility nor the weight of the testimony, why copy this testimony? The same may be said with reference to the majority's statement that appellee was married man. That could only be introduced to affect appellee's credibility. These were questions within the exclusive province of the jury, and unless we are going to determine the credibility of the witnesses and where the preponderance of the evidence lies, why call attention to these things at all? We do not pass on them.
Mrs. Retha Carter testified that she was walking with two other persons and was near the railroad track when the appellee's car was hit. The first she knew about it was when she heard the noise at the time it hit the car. She was as close to the crossing as she could be not to be hit herself; she saw the train about the time it hit appellee; it had not whistled before that and the bell had not rung. She knew the train was coming about a minute and a half before it hit the car. It was so foggy she could hardly see. Witness did not notice any headlight shining, but saw the bulk of the engine, and when asked on cross-examination: "You just weren't paying any attention to it, were you?" she answered: "It didn't whistle." She further said that the train did not whistle and the bell was not ringing.
Cletus Price, a witness for appellee, testified about the photographs introduced.
Mrs. Lorine Davis testified that she saw the accident; the train had not whistled before it struck appellee; the bell on the train was not ringing; it was rainy and foggy that night. *Page 357
Elza Chrisp testified that he lived at Alicia, was a farmer, and was at Hoxie the night of the accident; the train had not whistled until witness heard the crash; he did not hear a bell or a whistle, but heard the crash; thinks if the bell had rung or the whistle sounded, he would have heard it; it was foggy and misting rain. This witness was asked if he saw Mr. Price drinking anything that night. He said that he had not; did not see appellee and Vina Davis and several other girls drinking beer; none was sold that night; he thinks they started selling beer there in June; they were not selling any there then; he is positive of that; he did not see any flasher lights at the crossing; if they had been working they would have flashed on him; witness still says there was no whistle blown until after the crash; he saw a dim light on the train; in going through town they have a rule for dimming the light; he knows they have such a rule because he has railroaded; did not see a light on the train that night until the minute it was across the crossing in front of him; the fog made the street lights dim.
Fred Weeks testified that he saw the collision; was manager of a cafe across the street from the depot where the collision occurred; was looking at a car facing him and just as this car of appellee got on the center of the railroad track, the engine came on the crossing; up to that time the train had not whistled or the bell rung; there was no signal at all; he guessed the train had a head light, but it was very dim; the only light he could see about the engine was the fire in the fire-box; if there had been a signal he would have heard it; there was no whistle nor bell; does not think Price was running over 20 miles an hour, if that fast it was a little foggy that night, and there was a heavy drizzle; did not see the flasher lights at the crossing; sometimes they do not work when a train comes in; has seen them fail to work when lightning hit them; saw them fail to work on one occasion after this accident; did not hear the train whistle at all that night; was paying attention and looking for the train and listening for the bell.
Appellee testified that he and his wife had been separated for five years and she did not live at *Page 358 Pocahontas then; Cash ran a dance hall and a cold drink place; he did not sell whiskey or beer; he stayed at the place thirty-five or forty minutes and started home; was driving at a speed of not more than 20 miles an hour; he knew there was a railroad crossing there; knew that a train might come, and he drove slowly; looked and listened for trains and did not hear or see any; the lights over the crossing were not shining; if there was a light on the train it was a mighty dim one; witness did not see any light on the train at all; never did see the train until it struck him; continued to look and listen for trains at both ends of the railroad and both sides of the highway until he was practically on the crossing; he had not seen or heard a train.
A. B. Bartlett, the engineer, testified that he had been working for the Missouri Pacific for 38 years and had been running an engine for 26 years, but this was his first trip on a passenger train; he was making a station stop and he saw the car when it stopped and he released the brakes; it had very bright headlight; witness could see it plainly; the car was possibly 200 feet from the track when he first saw it; when asked whether the car came to a complete stop, he said he thought it did. He also testified that the weather was cloudy and dark; the visibility was not good as it would have been on a brighter, moonlight night; the headlights on the automobile were shining bright; when he first saw the car he already had his brakes on.
I have copied the evidence tending to show the negligence of the railroad company at the time of the accident. The evidence shows that the train that hit appellee's car approached the crossing when it was dark and foggy with no headlights, no bell ringing, no whistle blowing, no flasher lights, in fact no warning of any kind. The evidence further shows that the engineer saw appellee in time to have stopped the train before he reached the crossing, but he says he thought appellee was going to stop. He should not have thought that; he should have known whether appellee stopped or not.
The majority opinion says: "Of course, comparative negligence is a matter of jury determination, but *Page 359 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."
In other words, the majority opinion says that when an engine pulling a train comes into a town at the rate of 20 miles per hour with no headlight, no bell or whistle sounding, no flasher lights, and when the engineer himself testifies that he saw appellee in time to stop the engine, but he thought appellee was going to stop, that that negligence of the railroad company is not as great as the negligence of the traveler in the automobile which was approaching the crossing at a speed of about 15 miles per hour, looking in both directions and could not see a train, and listening, and was unable to hear, not because his doors were closed, but because there was no signal given. Will any fair-minded person believe this? I do not think so. And yet, the majority opinion says that this is a question for the jury. The jury passed on it and found the railroad company's negligence was greater than that of appellee. What right has this court to pass on the question? How is it possible for this court to pass on the question without passing on the credibility of the witnesses and the weight of their testimony? Decisions of this sort simply ignore the right of the jury.
Section 12 of art. 17 of the Constitution of the State of Arkansas reads as follows: "All railroads which are now or may be hereafter built and operated, either in whole or in part, in this state shall be responsible for all damages to persons and property, under such regulations as may be prescribed by the General Assembly."
It is true that this court has held that that provision of the Constitution does not mean what it says. "But this court has construed these provisions of the law to mean that railroads are liable only in cases where they have been guilty of some actionable negligence." St. Louis, I. M. So. Ry. Co. v. Pitcock, 82 Ark. 441, 101 S.W. 725, 18 Am. St. Rep. 84, 12 Ann. Cas. 582.
Railroad companies and all other persons are responsible for all damages to persons and property caused by their negligence. They were liable for damages to *Page 360 property caused by their negligence before the adoption of this provision of the Constitution. Therefore, the Supreme Court did not construe that provision of the Constitution, but annulled it, abrogated it. I think that provision of the Constitution means what it says.
If there is anyone who ever studied this question that doubts that the railroad company and other persons would be responsible for all damages to property caused by their negligence before the adoption of this provision, I have never seen such person. The judges of this court take an oath that they will support the Constitution of the State of Arkansas, and I think they should do it.
The majority opinion says: "The case is controlled by Missouri Pacific Railroad Company v. Davis, 197 Ark. 830,125 S.W.2d 785." The opinion in the Davis case states: "Under our Comparative Negligence statute (11153, Pope's Digest) there may be a recovery, notwithstanding the negligence of the person injured, if that negligence is of less degree than that of the operatives of the train.
"We have held in numerous cases that it is the duty of the jury to weigh and compare the evidence and determine the relative degrees of negligence, and, that ordinarily, the finding of the jury is conclusive of the issue as to the degrees of negligence." Mo. Pac. Rd. Co. v. Davis, 197 Ark. 830, 125 S.W.2d 785.
If this case were controlled by the Davis case, it would be affirmed. The truth is, as I understand the case, that the majority opinion correctly states the law, and then proceeds to decide the case directly contrary to the law as stated.
I think the evidence clearly shows that the negligence of the appellee was less than the negligence of the appellant; but if I did not think that, since the law authorizes the jury, and not this court, to pass on the question of the negligence of each party, and the jury did pass on this question, the case should be affirmed.
Mr. Justice HUMPHREYS agrees with me in this dissenting opinion. *Page 361