*293Dissenting Opinion by
Mr. Justice Musmanno:This Court continues to draw a distinction between so-called positive testimony and so-called negative testimony and, in doing so, makes a shambles, in this respect, of logic, ratiocination and elementary common sense. Testimony is neither negative nor positive. It may be credible testimony or incredible testimony, but it is not negative or positive. A “no” answer is just as positive as a “yes” answer since it describes a given situation. The absence of law and order is just as positive a situation as the presence of it.
If a witness testifies that on a certain day at a certain hour he was outdoors and it did not rain, is his testimony negative? Of course not. He has testified to a positive fact. The negation of the existence of a phenomenon, which is susceptible to the senses, does not mean that the statement is negative. It is as positive as the assertion that one has seen the Rocky Mountains.
If one testifies that he watched a circus parade and that he saw no elephants in it, is his testimony negative? Of course not. It is positive, because it is a matter of simple logic that, possessing good eyesight, he could not fail to see an elephant if it went by him.
The plaintiffs in this case were injured at a railroad crossing when a locomotive of the defendant Pennsylvania Railroad Company struck the tractor-trailer in which they were riding. The jury returned a verdict for the plaintiffs and the trial court ordered a new trial, stating that the verdict was against the weight of the evidence. Both plaintiffs testified that the locomotive gave no warning by whistle or bell as it bore down on them out of a mist caused by a cold rain coming into contact with the warm ground. A disinterested witness, Dr. Michael J. Polino, testified that he was in a building located next to the railroad *294tracks at the time of the accident and that he did not hear the locomotive give any audible warning of its approach before it struck the plaintiff. The trial court ruled out Polino’s testimony on the basis that it was “negative” testimony, adding: “He was not being attentive to the approach of the train, and therefore hardly in a position to know what had transpired in the matter of giving signals of the approach of this train.”
This is indeed a strange argument. What is meant by “being attentive” to audible phenomena? One does not have to be attentive in order to hear a clap of thunder; one does not have to be attentive in order to hear a pistol shot. Conversely, one does not have to be attentive to know that there ivas no thunder and there was no pistol shot. The shrill of a locomotive whistle is such that no one can possibly ignore it if it is sounded, and, by the same obvious deduction, one with normal hearing is certainly capable of saying, immediately after the moment of alleged shrilling, whether there was any shrilling or not. The test in this type of a situation should not be whether a person is “being attentive”, but whether his hearing is normal.
If one’s hearing is such that he can only hear a locomotive warning when he is being attentive to hearing it, he may be run down by the locomotive which blows the whistle. A warning of danger, if it is to be of any use, must be such that it warns the person who is not thinking of danger. The warning must be of such a character that its appearance, audible or visual, startles the listener whether he is attentive or not. By the same token, the absence of that star-, tling experience is also an event to be remembered, especially when the presence or absence of the warning is immediately associated with a tragic occurrence *295■which focuses the memory on all phenomena which preceded it.
It is not disputed that Dr. Polino’s hearing was normal and his senses sound. He was standing close to the tracks when the auto-trailer of the plaintiffs was hit by the locomotive. Simultaneously with the happening of the accident the first question which would instinctively form in Dr. Polino’s mind would be: How did this accident happen? Then: Why did the accident happen? And in that instant he could not avoid questioning himself as to whether the locomotive had sounded any warning. Dr. Polino answered that question by affirming that the locomotive had not sounded any warning. How, then, can such a definitive, positive averment be regarded as negative?
Under the theory advanced by the Trial Judge in this case, and affirmed by the Majority of this Court, a person injured at a railroad crossing can never recover if his statement that no warning was sounded is contradicted by the railroad because, where would he be able to find a witness who could testify that the only object he had in life at' the moment before the accident was to ascertain whether the locomotive would sound a warning whistle or not?
The Majority Opinion points out that the engineer and fireman both testified that the engineer: “gave four blasts of the whistle, — two long, a short and a long — , and at the same time opened the automatic valve which rang the bell continuously to the crossing.”
Is it possible that Dr. Polino could ignore such an audible commotion if it had actually occurred? The blasts of a locomotive whistle are' not the squeaks of a peanut roaster, and the continuous ringing of a locomotive bell is not the intermittent and feeble clank *296of a cow bell as its wearer languidly rises from a verdant pasture in which she has been contentedly ruminating her herbivorous cud.
Short of evidence that Dr. Polino is as deaf as the Sphinx, his testimony that the locomotive did not sound warnings was positive testimony — and it was believed by the jury. There is nothing in the record to suggest that Dr. Polino was a partisan supporter of the plaintiffs. There is nothing in the record which suggests that he had any interest in the case other than to expect that justice would be done as everyone has the right to expect it will be done when he goes into a courtroom.
Moreover, if there were any faults in the manner in which Polino testified, the tribunal to determine those faults and appraise them was the jury, but the jury found no probative fault in Dr. Polino. The jury heard the testimony of the engineer and fireman and refused to believe them.
The Majority Opinion says that the testimony of the engineer and fireman was strengthened by statements made by the plaintiffs within a few days after the accident. The Majority Opinion quotes from the driver Ulrich’s statement as follows: “I do not remember whether or not I made a full stop before I went up on the crossing. I don’t think I did ... I don’t think I was to a full stop but I do know I slowed down.”
This quotation omits the very significant remark by Ulrich, namely: “I have been trying to figure that out ever since then.” It would seem quite clear from all the circumstances surrounding the formation of the statement (which incidentally was taken in the hospital where Ulrich was suffering from his grave injuries) that he didn’t remember whether he had stopped or not. Ever since the collision, which had *297occurred six days before, he had been trying to “figure” out whether he had or- had not stopped. At the trial Ulrich testified that he did bring the tractor-trailer to a stop before he committed himself to the crossing. If there was an inconsistency between what Ulrich said at the trial and what appeared in the hospital statement, it was for the jury to determine what to believe. The jury could Avell have believed that the horrible fright which seized Ulrich Avhen he saAV the train suddenly burst out of the mist and the haze could have been of such a nature that even six days later he could not honestly say whether he had stopped or not. He described the terror of the collision in the following vivid language: “Burd said, ‘There’s an engine’ and I looked to my left and there it Avas. I remember that; I can see that engine. I think I will see that engine forever. We Avere on the tracks; I can’t tell you which one. If I. would have slammed those brakes on, the engine would have hit the cab. I think that’s what made me want to push that throttle doAvn and it just seemed as if it wouldn’t move. After I saw that engine, it scared the daylights out of me. I don’t know at what speed the train was approaching us. When I first saAV the engine, I don’t knoAV Avhether it Avas just a wish in my mind, but it seemed to me that it was stopped. It looked as if it was right on top of us.”*
There is scientific basis for the theory that a person Avho has suffered an overwhelming fright, succeeded by serious injury, may be better able to reconstruct Avhat occurred at the crucial moments of the disaster after a substantial period of time has elapsed than he can within the days immediately following the violence done his person and his senses. *298This may or may not have been argued to the jury but there can be no doubt that the railroad company’s opposing position was pressed vigorously to the jury— and it was rejected.
Why is it necessary then to have another trial on the same issue? Both sides were represented by very able counsel, the record shows no trial error, the charge was eminently fair to both sides, the jury ivas an intelligent one which not only heard all the testimony presented in court, but visited the scene of the accident in order thoroughly to understand and grasp the contentions of both parties. What more can be done at a subsequent trial?
The Majority Opinion says: “It is not the province of the court to resolve conflicts in the testimony or to usurp the function of the jury, but it is the duty of a trial court to pass upon the weight of the evidence and to grant or withhold a new trial accordingly.”
But in the case of Carroll v. Pittsburgh, 368 Pa. 436, where the present writer was the Trial Judge, and he granted a new trial because he believed the verdict was against the weight of the evidence, this Court reversed his order and said: “A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion: Wilson v. Kallenbach, 332 Pa. 253, 255, 256, 2 A. 2d 727, 728. Neither should it ordinarily be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the jury might have found for either party.”
If it was not proper to grant a new trial in the Carroll case, what superior virtue is found in the Trial Judge’s decision in this case? As was true in the Carroll case the evidence in the case at bar was *299conflicting and the jury might have found for either party. If the review of this Court of the Trial Judge’s decision in the Carroll case was negative, why is it positive in reviewing the decision of the Trial Judge’s decision in the case at bar?
Where is the consistency?
Where is the logic?
I dissent.
Italics throughout, mine.