dissenting.
We respectfully note herein our disagreement with the majority opinion. The following evidence statement, together with such additional testimony as may be subsequently referred to, will serve as the basis for the reasons on which the dissent is grounded: Mr. Burden was killed at one of the railroad crossings in Diboll, a town of about 4,000 population. Two tracks paralleling each other are on the company’s right of way at this point, the main line on the west, and the switch track on the east. They are about 7 feet apart with a narrow space of about 22 inches between the overhang of cars of trains side by side on the crossing. Two highways parallel each other on opposite sides of defendant’s right of way. The one on the east is highway 59; the one on the west, the community road. Mr. Burden’s store was on the west side of the tracks about 100 feet slightly northwest of the center of the crossing. The next house north of the store was the home of Mrs. Richardson. Her testimony may be identified in the majority opinion by the reference to it there as that of “the lady witness.” About thirty minutes before the accident a freight train headed north was uncoupled on the siding to await the passing of defendant’s southbound passenger train, running a half hour late. The uncoupling left a small gap on the sidetrack about 40 feet in length from north to south for traffic to pass through east and west on the connecting road. The car at the south edge of the gap was an immigrant car.
Sergeant Leonard, defendant’s witness, testified that he heard the approaching train whistle (“two short blasts”) about 200 yards from the crossing and did not hear the bell ringing; and that when Burden came north from where he was standing in front of the immigrant car door he came “kinda” by the side of him (Leonard) and turned left toward the store; and that he (Leonard) heard the brakeman “holler” to Mr. Burden. According to Tom Tatum’s testimony, Burden, when Tatum first saw him, was about the middle of the sidetrack walking to*127ward his store at “an average gait.” The brakeman, Harris, then standing- at the crossing, said that the last time he “hollered” at Mr. Burden the approaching train must have been within 100 feet of him. Tatum said he was caused to stop his automobile on the connecting road a few feet east of the crossing, by two short whistle blasts (“just two toots”) ; that he thought they came from the freight train and “figured” it was about to hook up and pull out; but then looked both ways and saw the passenger train coming from the north. It was at that time (when he looked both ways) that he saw Burden, he said, and that immediately after, he saw the brakeman; that Burden had then got to about the west edge of the sidetrack and close to the main line when the brakeman “hollered” at him; that Burden “hesi-tatéd,” quickened his gait, and moved (out of the gap on the sidetrack) “hurriedly” and was hit dose to the first roM.on-the main line.
The eye witnesses to the accident (five in number) agree that deceased was struck when moving directly from the sidetrack to the main line track. They do not agree as to whether, .in getting to that track, he did so by stepping “pretty pert”, or in a “hurry walk”, o.r by “jumping” or “leaping”, from the sidetrack.
The brakeman, by his deposition testimony, placed Burden, when he was hit, entirely off of the community road, south of it; but in his trial testimony placed him further north and east but still further south than Tatum placed him in his trial testimony.
Mr. Patton-, the caretaker of the contents of the immigrant car, said that as Burden left the door of the car walking toward the crossing, he (Patton) stepped to the opposite - door and looked, “and seen the train coming right on me.” He expressed his opinion that Burden knew the passenger train was coming, and gave as his reason for his opinion that Burden said “25” was coming and he would be going.
Mrs. Richardson testified that neither the whistle was blown nor the bell rung at the crossing. She testified also, substantially as Tatum did, that fust before Mr. Burden was hit she heard a noise from the freight train “like when they go to couple up”; and that about the time it made the noise the passenger train came by and hit him.
*128Five witnesses testified concerning Mr. Burden’s movements just prior to the accident, as eye witnesses. Their Q & A testimony covers 168 pages of a 400 page statement of facts, including eleven photographs and four sketches of the crossing and its environing situation (offered by plaintiff) and two statement exhibits (offered by defendant). Mr. Patton came to the trial from Arkansas as a witness for defendant in response to a telephone call three years after the occurrence. Harris was still in the defendant’s employ when he testified as its witness. Sergeant Leonard came as a defense witness to the trial from Ft. Sam Houston. Mrs. Richardson and Tom Tatum were wit-neesses for plaintiff. Mr. Burden 'did not survive to testify. He spoke no word after starting from the east door of the immigrant car toward the crossing (unless he said what is above referred to in Patton’s testimony about “25”) ; hence it was necessary to consider the testimony of those who saw the tragedy for explanation of deceased’s movements on the sidetrack just prior to his death, together with the existing circumstances, beginning such consideration with the presumption that Mr. Burden’s movement were not motivated by an intention to commit suicide.
The trial court submitted the cause to the jury on numerous ultimate special issues involving negligence and proximate cause. The findings in response to the issues were that defendant was negligent and that plaintiff was not; that the train was running at an excessive speed; that the fireman failed to blow the whistle when the locomotive was at least 80 rods from the crossing; that it failed to blow the whistle and ring the bell as the train approached and passed over the crossing; that each of the acts of negligence mentioned, and others not necessary to mention, proximately caused Mr. Burden’s death; and that he did not deliberately jump in the middle of the main track in front of the train. The trial court entered judgment on the findings for plaintiff.
The six-page statement of the testimony on which the majority ground their opinion (four pages quoted from defendant’s witnesses, who saw the accident, and two from plaintiff’s witnesses who saw it, together with testimony conflicting on the face of the statement, and conflicting testimony not included therein) is too voluminous for specific treatment. Suffice it to say for the purposes of this dissent that in our opinion the testimony selected does not afford a proper basis for considering the evidence. It, at most, was selected out of the 400 pages, as appears from its treatment by the majority, to be weighed *129and interpreted against testimony reasonably subject to interpretation materially inconsistent with that set forth by the majority. The jury had a right to consider the evidence from the position of deceased just before and at the moment of collision, and it is incumbent on the appellate courts to consider it most strongly in plaintiff’s favor, rejecting that most favorable to defendant. Kirksey v. Southern Traction Co., 110 Texas 190, 217 S. W. 139; Mitchum v. Chicago R. I. & G. Ry. Co., 107 Texas 34, 173 S. W. 878; Merchants Bldg. Corp. v. Adler, 110 S. W. (2d) 978; G. C. & S. F. Ry. Co. v. Gasscamp, 69 Texas 545, 7 S. W. 227; McAfee v. Travis Gas Corp., 137 Texas 314, 153 S. W. (2d) 442; Jones v. Ry. Co. (Com. App.), 243 S. W. 976; Ry. Co. v. Barron (Com. App.), 249 S. W. 825; Fry v. Dixie Motor Coach Corp., 142 Texas 589. (Par. 2), 180 S. W. (2d) 135, loc. cit., Key No. (2) p. 137; International & G. N. Ry. v. Hawthorne, 131 Texas 622 (Par. 3), 116 S. W. (2d) 1056, loc. cit. Key No. 8, 9) p. 1059. The law in this connection .(when there is room in the evidence, as in the present case, for reasonable minds to differ) is concisely stated thus: “The weighing of the evidence is a matter over which the Supreme Court has no jurisdiction whatever, the judgment of the court of civil .appeals being final. The court of Civil Appeals alone can overrule the findings of the jury or the trial court because contrary to the weight of the evidence.” 3 T. J., and T. J. Supplements to date, Appeal and Error, Sec. 764.
Appellant company did not take the position that there was no evidence tending to show that Mr. Burden was not negligent, but contended that the evidentiary question as to whether he knew when he started toward the crossing that the train was coming, was conclusively proved. As to the ultimate question as to whether or not Burden was negligent, it was appellant’s ■contention that the evidence preponderated in favor of such a conclusion. Employing the language of appellant’s brief in this connection, it is that the facts “preponderantly show at least that the deceased was guilty of the grossest bit of death-defying negligence that resulted in his death.” (Italics ours). In other words, appellant contended that the evidence on the whole preponderated in its favor on the special issue as to whether or not Mr. Burden was negligent. It goes without saying that if there was evidence to support the jury’s finding on this issue, then it unquestionably follows that Mr. Burden’s death was not proximately caused by his negligence, and that he was not guilty of contributory negligence.
There were two theories urged' upon the court of civil appeals. Appellant company’s theory, in its effort to set at naught *130the jury finding in response to the special issues inquiring as to deceased’s negligence, was that the testimony showed conclusively that Burden knew the train was coming because there was testimony not subject to being rejected that Burden said as he started for the crossing that “25” was coming; and that it knew Burden said “25” was coming because Patton said he said it, arguing in support of its theory that since Burden “knew” it was time for “25” to be coming, and four witnesses who were at the crossing said they “heard the train coming and heard its whistle blow,” that “he (Burden) too”, knew it was coming.
The theory of appellee was that there was testimony tending to show Burden did not know the passenger train was coming, and believing the freight train was about to couple up with him on the siding, moved off hurriedly to the closest zone of safety (only 22 inches in width) ; that in his confusion resulting from having his attention attracted away from the direction of the approaching train when the brakeman called, he went farther than the minimum necessary and found himself in the path of the oncoming train too late to avoid being hit.
The court of civil appeals held that there was testimony bearing on the evidentiary question of whether deceased had his attention thus diverted, and bearing in turn on the ultimate issues submitted to the jury inquiring whether Burden was guilty of negligence which proximately caused his death; and held in this connection that there was evidence tending to show that Mr. Burden’s action, under the circumstances as they appeared to him, were not substantially different from those -óf an ordinarily prudent person situated as he was after he went upon the crossing. The court held that some of the ultimate facts of negligence and proximate cause were reasonably inferable by the jury from the circumstances in evidence considered in the light of the whole. So holding, the court affirmed the trial court’s judgment entered on the findings in favor of plaintiff. 196 S.'W. (2d) 707.
In view of the record as above stated, petitioner grounded its application for writ of error, not on the contention that there was no evidence raising in the trial court the issues referred to, but on the contention that the court of civil appeals errer in not believing and in rejecting Patton’s testimony that Burden said to- him that “25” was coming. So contending, petitioner made the following statement at the outset of its application for the writ:
*131“Our task here then is only to point out and to make clear the fact that there is no justification in the record for a repudiation of the direct and undisputed testimony of a disinterested witness that the deceased knew the train was coming as he approached the main line track. That fact being established, it will follow that there can be no recovery by the plaintiff under all existing circumstances.” (Italics ours).
Writ of error was granted with that doubt incident to tentative views held when the judgment of the trial court entered on special issue fact findings has been affirmed by the court of civil appeals. We are unable to agree with the majority on full and final consideration of the record before us, that the tentative view entertained in granting the writ, was correct.
About the time the two blasts of the whistle sounded Mr. Burden was crossing over the railway tracks toward his store in a northwesterly direction. Two witnesses testified that at the time they heard the “two toots” of the whistle they heard a sound like a train about to couple up. If Mr. Burden interpreted this noise as the witnesses did (and the jury had the right to infer that he did), then he had reason to believe that the train was about to be coupled with him in the dangerous situation above referred to. Just at this time the brakeman “hollered” to Burden to warn him of approaching danger, but there is evidence that the position of the brakeman when he called to Burden was such as to divert Mr. Burden’s attention aaoay from the ápproaching passenger train. It could well have been that he obeyed the warning as he understood it and that the “hollering” of the brakeman whom he had not then seen, and his “motion-ings” after he did see him, diverted his attention away from the direction of the oncoming train, with the result'above stated. An ordinarily prudent person believing he was in danger of being caught between cars would have attempted to extricate himself. The jury had a right to believe that is what Mr. Burden did and the verdict indicates that the jury so believed.
With respect to Patton’s statement that Mr. Burden said that “25” is coming, I believe I’ll be going, there is neither any direct evidence that he did not say it nor any evidence corroborating that he did say it. Whether this testimony if believed, would establish that deceased knew the passenger train was approaching when he left the immigrant car door, need not be decided; nor whether the witness was a disinterested witness. Waiving aside both of these matters it still remains that there is considerable contradiction in the testimony of Patton on cross examination. These contradictions were such as to create *132a doubt in the minds of jurors as to his credibility, which was for the jury (who heard and saw him as he testified.) It was for the jury to weigh his testimony and they were not required to accept it as true. The verdict indicates that the jury did not so accept it. Under these circumstances his evidence cannot be relied upon as establishing (contrary to the jury findings and the trial court’s judgment and its affirmance by the court of civil appeals) that contributory negligence on the part of deceased was established as a matter of law; or that none of respondent’s acts of negligence proximately caused Mr. Burden’s death. Certainly such conclusions were not established so conclusively that reasonable minds could not differ with respect thereto.
Nor can we agree with the majority that the following statement in their opinion is the law of this State:
“Where one who uses a railroad crossing exercises no care whatever for his own safety, he is guilty of contributory negligence as a matter of law. In such cases a recovery is always dénied unless there is evidence in the record to support a recovery upon the doctrine of discovered peril.” (Italics ours).
See the addendum of the Supreme Court in Trochta v. Missouri, K. & T. Co. (Com. App.), 218 S. W. 1038; also 7 T. L. R., pp. 128-40 (article entitled “Conclusive Evidence of Negligence in Crossing Accidents”) loc. cit. pp. 128-9; also International & G. N. v. Edwards, 100 Texas 22, 92 S. W. 106 (in which the Supreme Court pointed out that the case was “easily distinguished from those in which this Court has held that, under the facts thereof, it would have been improper for the courts to have instructed that it was the duty of travelers to do any particular thing, such as to look ánd listen, it being the function of the jury to say what precautions were called for by the particular situation”; see also Barron v. Houston, E. & W. T. Ry. Co. (Com. App., Sec. B), 249 S. W. 825 (showing reversal by Section B by majority opinion of its former view of contributory negligence as a matter of law, — conforming to the view that both the Edwards case and Galveston, H. & S. A. Ry. Co. v. Price (Com. App.), 240 S. W. 524 (cited by petitioner) both announced sound law as applied to the facts of the respective cases. See also Hines v. Arrant (Wr. Ref.), 225 S. W. 767, loc. cit. (1-3) pp. 768-9; and in this connection, Texas & Pac. Ry. Co. v. Day, 145 Texas 277, 197 S. W. (2d) 332, a case in which the question of Day’s negligence was held to be for the jury. This is the only opinion of the Supreme Court which has cited the familiar *133Section B crossing case, Gulf, C. & S. F. Ry. Co. v. Gaddis (Sec. B, Com. App.), 208 S. W. 895, (cited by the majority but not by petitioner) in the well nigh 80 years since it was written. It was correctly decided and the Supreme Court approved the “judgment recommended” by that Section on the ground that under its particular facts “contributory negligence as a matter of law” was shown. It has no controlling kinship to the present case and is not in point in that there was no testimony tending to show that Gaddis’ attention was diverted away from the train that struck him.
.The Gaddis case was not cited by the Supreme Court as authority upholding a conclusion that Day was negligent as a matter of law, but was cited along with the Edwards case in explanation (without distinguishing discussion) of the unequivocal holding that Day’s negligence was not conclusively established. See the statement in the Day case immediately following the citation, and the apt quotation in that connection from the Hines case.
For the reasons above indicated we respectfully enter our dissent to the opinion of the majority.
Opinion delivered June 25, 1947.
Chief Justice Alexander and Associates Sharp and Simpson, concurring.