(dissenting).
I must respectfully dissent from the conclusions reached by a majority of this court. The sole question decided in the majority opinion is whether there was sufficient evidence to submit to the jury the question of plaintiff’s contributory negligence.
In addition to the statement made by the plaintiff as to the effect of her shoes on her fall — she announced at one point following her fall “throw these darn things away, this is the second time they have made me fall” — there was also testimony that plaintiff was hurrying to another appointment and that she had been in defendant’s store on several occasions and was familiar with the terrazzo tile in front of defendant’s store.
While a trial judge may commit error by submitting the issue of contributory negligence to the jury where there is no evidence from which reasonable men could find such negligence, Sax v. Kopelman, 96 Ariz. 394, 396 P.2d 17 (1964), if there is any evidence from which plaintiff’s contributory negligence may be inferred this issue must be submitted to the jury. Zak-roff v. May, 8 Ariz.App. 101, 443 P.2d 916 (1968).
This can become a game in semantics— was there evidence or wasn’t there evidence? This question must be tested by the same measure that tests the submission to the jury of any other fact question. If reasonable men might reach different conclusions from the facts as to the existence of negligence or contributory negligence, then such questions are for the jury. Bowers v. J. D. Halstead Lumber Co., 28 Ariz. 122, 236 P. 124 (1925); Campbell v. English, 56 Ariz. 549, 110 P.2d 219 (1941); Figueroa v. Majors, 85 Ariz. 345, 338 P.2d 803 (1959); State ex rel. Industrial Commission v. Standard Oil Co. of Calif., 3 Ariz.App. 389, 414 P.2d 992 (1966).
The majority of this Court would find that reasonable men could not differ on the question before us because “we do not believe the evidence indicates that there was, in fact, a causal connection between the wearing of these shoes and the fall.” I have also viewed the shoes involved and while they appear to be ordinary shoes, plaintiff’s statement that they caused her to fall coupled with plaintiff’s hurrying and her prior knowledge as to the type of surface she was walking on, to me gives rise to a fact question as to causation. I *343■would not usurp the jury’s function of resolving this question of fact.
The majority also sustain their holding that reasonable men could not differ as to the question of contributory negligence by taking as true plaintiffs explanation of her previous fall. The majority states “we do not believe that the wearing of these shoes at this place in light of her previous fall raised any inference that plaintiff as an ordinary prudent person was negligent in wearing the shoes in the store.” (Emphasis added.)
The credibility of witnesses and the weight to be given their testimony are within the province of the jury. Tom Reed Gold Mines Co. v. Brady, 58 Ariz. 44, 117 P.2d 484 (1941). When viewing the evidence in a light most strongly in favor of supporting the jury’s verdict, as we must do on appeal, it is conceivable that the jury believed plaintiff’s statement made at the time of the accident, while she was sitting on the sidewalk hurt and humiliated, that her shoes made her fall and did not believe the statement she made in court, after time for reflection, that her narrow skirt caused her to fall the first time. Neither I nor the other members of this court saw the plaintiff, viewed her demeanor or heard her testify. Because of this I will not, and this court should not, substitute its judgment for that of the jury as to what portion of this witness’s testimony is capable of belief.
Plaintiff’s out-of-court statement that her shoes caused her to fall came before the jury as substantive evidence. What weight this evidence was to be given was for the jury. As was stated in Holmes v. Gross, 250 Iowa 238, 93 N.W.2d 714 (1958):
“Appellant emphasizes the fact that when plaintiff was found at the bottom of the stairway he told defendant’s husband the fall was his own fault; he also told defendant the same when she visited him at the hospital. He was seriously injured and in some shock, when found at the bottom of the stairway, and seriously sick in the hospital, and his statements under such circumstances while proper for consideration by the jury, are not conclusive as to contributory negligence. * * *
* * * * * *
“The circumstances and conditions were such that the trial court was correct in overruling the motion for directed verdict on the ground of contributory negligence, and in submitting the question to the jury.” (Emphasis added.) 93 N.W.2d, at 719 and 720.
Plaintiff’s statement coupled with her hurrying and prior knowledge would, in my opinion, cause reasonable men to differ as to whether plaintiff was guilty of contributory negligence. This issue, then, was properly submitted to the jury and its determination is binding on this appellate court.
I would affirm the judgment .of the trial court.