DISSENTING OPINION.
GRAY, J.In Porter v. Railroad, 199 Mo. 82, 97 S. W. 880, it is said: “It is well settled in this state that when a traveler approaches a railroad crossing he must look both ways and listen for coming trains, and the negligence of the company in failing to give proper signals will not excuse the traveler’s duty to look and listen.”
It is also well settled that a railroad track is in itself a warning of danger, and one who attempts to cross it must act with care proportionate to the danger, and if the traveler, by looking, could have seen the train approaching, the mere fact that he testifies that he did look and did not see, does not entitle him to have the question submitted to the jury. [Sanguinette v. Railroad, 196 Mo. 466, 95 S. W. 386.]
I agree that in determining whether plaintiff, because of his own negligence, had a case for the jury, defendant’s testimony, where controverted, cannot be considered, and that plaintiff is entitled to the full force of all uneontroverted facts and to all his controverted evidence, and is to be allowed every reasonable and favorable inference of fact deducible from all the evidence; also that the question of contributory negligence is for the jury, where the facts are in dispute, and where though undisputed, they are such as to lead the minds of reasonable, men to different conclusions. I am also of the opinion the plaintiff, by his own testimony, made a prima facie case, and *722if he had offered no other witnesses, but had relied solely on his own testimony, his case might have been properly submitted to the jury. When he testified that he could not see the train coming and did not hear it, although he looked and listened, and that no statutory signals were given and he was injured, he made a prima facie case. The question of his contributory negligence was an affirmative defense, and he had the right to have the jury pass upon the credibility of defendant’s witnesses, who testified in support of this defense.
The plaintiff, however, did not rest with his own testimony, but offered two other witnesses who testified that the train could have been seen for a half mile up the track by plaintiff at all times while he was on the highway, from the time he reached a point within 245 feet of the crossing until he had passed over the same. In other words, these witnesses testified that from the time the plaintiff came within 245 feet of the crossing, until he had passed over it, he had a plain view down the track for a half mile from the crossing, and could have seen the train coming for that distance. One of these witnesses had lived for thirty-four years in that neighborhood, and was examined by the plaintiff on direct examination for the purpose of showing that he was perfectly familiar with the crossing, and had observed the conditions surrounding it. The other witness had lived five or six years in the vicinity of the crossing, and was well acquainted with the surroundings. As stated in the majority opinion, these witnesses were corroborated by six disinterested witnesses who testified for the defendant, and also by three photographs, the correctness of which plaintiff did not dispute.
It is my contention that when the plaintiff’s witnesses testify to a certain fact and the witnesses for the defendant testify to the same fact, and there is no conflict in their testimony, there is no issue of fact *723to submit to tbe jury. I give full recognition to the rule that where the plaintiff has testified to certain facts which are contradicted by his own witnesses, that he still has the right to have the jury pass upon his credibility and weigh the testimony and find for him, although to do so is to return a verdict inconsistent with and contradictory to the testimony of his other witnesses.
I do not find in this case, however, any such conflict in the testimony of the plaintiff and his witnesses. The plaintiff testified as follows:
“Q, When you travel along that public road west of the orchard and as you get further north, state how the obstruction of the trees is then, whether you can see better than when you are further south, or worse, as you get up nearer the north end of the orchard? A. You can’t see the train coming at all.
“Q. Why not? A. Well, it is a valley back there..
“Q. Back where? A. Back; about a half a mile back there is a valley there.
“Q. Public road or railroad? A. I mean on the 'railroad. There is a valley there, and trains, come right up out of that dirt cut, and that cut is growed up with weeds and grass and stuff, and you can’t see back that way for that until you get on the right of way; growed up with weeds and brush and stuff, and it is kind of a little cut there, and you couldn’t see the train no distance unless you got up onto the main track on the railroad; then you could look straight down the track and see it, but if you got out ten feet to one side you positively couldn’t see no train coming, because the grass and weeds and stuff there will hide the view of it,
“Q. Now, when you got to that point I have spoken of, that would be due west of the last three? A. Yes, sir.
“Q. Going a little further north of that, just *724passing the last tree, could you then, by turning around, see back down the track? A. No, sir.
‘ ‘Q. Because of these things you have mentioned? A. Yes.
“Q. How far on north in the usable part of the public road before you can see any distance down the track? A. You will get in ten feet of the crossing before you can see any distance at all. You will get 220 or 230 feet north along the right of way before you can look back and see the train coming. You have got to get where you can look through that cut, because— it is not so very deep, but you take weeds and grass that grows up on that bank, will prevent you from seeing. . . .
“Q. In coming towards the crossing, within three or four hundred feet of the crossing, southeast, would it be an up grade or down grade, approaching the crossing from the southeast? A. Take it a half a mile south and it is in a valley. After it leaves that it comes to a little grade and on to a level.
“Q. About how far does that level begin from the railroad crossing? A. Well,.I couldn’t say. It is not very far, though.
“Q. Well, what is your mind of ‘not very far?’ A. Well, I could’nt say as to that.”
On cross-examination, he testified:
“Q. You took no measurements of any kind? A. No, sir.
“Q. There was another road crossing just, like that right down there — down there a half a mile? A. Yes.
“Q. And the train crossed that crossing before it crossed that crossing where your team was scared? A. Yes.
“Q. How is the road, up grade or down grade, from your crossing to that crossing? A. About level —I don’t know.”
*725It will be noticed from plaintiff’s testimony that he ascribed his inability to see the train coming, to a dirt cnt which was covered with weeds and grass, and that he conld not see the approaching train until’ he got to a point where he could look through that cut. He did not undertake to say at what distance the cut was from the crossing, although he was examined on both direct and cross-examination on this material point. He simply said he did not know how far it was; that he had made no measurements, and it was not very far. All the testimony tended to show that this cut was very close to another crossing, which was a half mile from the crossing where plaintiff was injured. If the burden had been on plaintiff to establish the fact that he could not have seen the train coming a quarter of a mile from the crossing, his testimony would have wholly failed to do so. This being true, there was absolutely no conflict between the plaintiff’s testimony as a witness in his own behalf, and the testimony of his other witnesses who testified for him, and therefore, it may be said that the testimony of plaintiff’s witnesses, as well as those of the defendant, all agreed that the train was in plain view and could have been seen by the plaintiff at any time after it came within a quarter of a mile of the crossing.
In Richey v. Woodmen of the World, 146 S. W. 461, the Kansas City Court of Appeals, in an opinion by Judge Johnson, held, that where the witnesses of a party are supported by the witnesses of an adverse party, the uneontradicted facts must be deemed proved, and there is no issue for the jury. It is further held in that case that where the defendant relies on an affirmative defense, that such defense may be so clearly and indisputable established that its existence should be accepted by the court as proved in law, and where all the evidence in the case is of such character that it affords no room for reasonable controversy, *726there can be no issue, and therefore, nothing concerning such fact for the jury to determine.
As I construe the majority opinion, it recognizes the correctness of the rule declared by the Kansas City Court of Appeals in the Richey case, and therefore, our differences are confined to the proper construction to be given plaintiff’s testimony. My associates are of the opinion that he did testify that he could not see the train coming, because of certain obstructions, while as I construe his testimony, he did not testify that such obstructions were within a quarter of a mile of the crossing. If I am correct, then the case falls within the rule of the Richey case, and the judgment should be reversed and the cause-remanded.