Conceding that the evidence showed *Page 181 that the railroad company was guilty of some acts of negligence in the operation of its train on the occasion in question, I think that the evidence as a whole demanded a finding that by the exercise of ordinary care the plaintiff could have avoided the consequences to himself of that negligence. It is well settled that "the testimony of a party who offers himself as a witness in his own behalf is to be construed most strongly against him when it is self-contradictory, vague, or equivocal. . . And he `is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him.'"Southern Ry. Co. v. Hobbs, 121 Ga. 428 (49 S.E. 294). A cursory examination of the plaintiff's testimony in his own behalf shows that it is "self contradictory, vague, and equivocal." For instance: It appears from his evidence that in approaching the crossing he first looked north to see if a train were coming from that direction, then south, and then north again at a time when he says he first saw the train and it was too late to avoid the collision. The distance he was from the crossing when he first looked north in the direction from which the train was coming, and when he looked north the last time and first saw the train, are very important factors in the case. On direct examination he swore: "When I was . . around a hundred feet from the crossing I looked north, and the track was clear, and when I got within fifty feet I looked south . . around the service-station and saw it was clear there; and I imagine I was within thirty feet of the crossing, and I turned around and saw the train." (Italics mine.) On cross-examination the plaintiff, referring to his testimony on a previous trial of the case, said: "I said I looked north at fifty feet, and then looked south." (Italics mine.) He further testified that when he was fifty feet from the crossing he could see all the way along the track north to Hawthorne Street.
Let us view the plaintiff's testimony in the light of the above stated ruling. The undisputed evidence showed that Hawthorne Street was three hundred and four feet north of Hamilton Street; that there were no obstructions to prevent a person from seeing the entire railroad track from Hamilton Street to Hawthorne Street, when that person was fifty feet, or a hundred feet, from the crossing on Hamilton Street. The plaintiff testified that his eyesight was good, and that when he was fifty feet from the crossing he *Page 182 looked up the track as far as Hawthorne Street and saw no train. If that were true, the train had not then reached Hawthorne Street. He testified that his automobile was proceeding at a speed of about eighteen miles an hour, and that when he was ten feet from the crossing, the train had just reached the crossing. It follows that the train ran three hundred and four feet while the automobile was going forty feet; and a simple mathematical calculation shows that the automobile covered the forty feet in less than two seconds, and that the train must have been running at a speed greater than one hundred miles an hour. The highest rate of speed that any witness testified that the train was running was sixty miles an hour. It follows as a mathematical fact that when the plaintiff was fifty feet from the Hamilton Street crossing the train must have reached Hawthorne Street, and that if he looked up the track to that street, as he said he did, he must have seen the train, and could have avoided the collision by applying the brakes and stopping his car. He testified that his brakes were in good condition and that he could have stopped his car "within ten or fifteen feet." Therefore, under the ruling that a party offering himself as a witness in his own behalf "is not entitled to a finding in his favor if that version of his testimony the most unfavorable to him shows that the verdict should be against him," the verdict in this case is contrary to law. The testimony of the plaintiff that he looked and did not see the train is contradicted by the undisputed mathematical fact that he must have seen it if he looked, and must yield to that fact. "Courts and juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable. Great physical laws of the universe are witnesses in each case, which can not be impeached by man, even though speaking under the sanction of an oath." Patton v. State, 117 Ga. 230 (5), supra. It is my opinion that under the testimony and the physical facts of the case a finding was demanded that the plaintiff by the exercise of ordinary care could have avoided the consequences to himself of the defendant's negligence; and that the court erred in overruling the motion for new trial based on the general grounds only. *Page 183