Appeal from ’Circuit Court olf Codington County. Hauff and Stoormo as partners, brought an action against the South Dakota Central Railway Company, to1 recover damages to an automobile, resulting from a collision with a box car. propelled by one of defendant’s engines. Andrew B. Stor-mo, one of the partners, who was driving the automobile at the time of the collision, also brought an action for damages for personal injuries received in the same collision. The evidence in the two cases being identical, the parties stipulated that the two cases be consolidated and tried together. Separate verdicts were returned in favor of the two parties plaintiff. At the close of all the evidence, the defendant, appellant here, moved the court for a direction of a verdict in its favor, which motion was as follows:
“At this time the defendant moves the Court, and asks the Court to direct the jury to return a verdict in favor of the defendant on all the issues on the ground that the testimony is. insufficient to entitle the plaintiff to recover in either action; on the further ground that the testimony shows that the plaintiff Andrew H. Stormo was negligent in not taking and keeping his sense of sight and hearing employed in detecting whether or not a train was coming from the south, and did not use the ordinary care and caution that a person should use before attempting to make a railroad crossing, and for the further reason that the testimony does show that he was negligent and assumed the risk in attempting to make this -crossing ahead of the train, after he had seen the train, and must have seen the -train coming from the south.”
The motion was denied and appellant assigns error. The evidence tends to show that Hauff and Stromo were partners running an auto livery; that on Aug. 16, 1911, about 8 o’clock in the morning, Andrew Storm-o, who was an experienced chauffeur, -while going west on First Ave., in the City of Watertown, with a passenger in -an automobile, was struck by a box car propelled by one of defendant’s engines, backing north on the Great. Northern track.
*187The testimony showed the locatiton of different points and tracks as in the following plat:
A to C 650 feet.
A to B 675 feet.
C to B 825 feet.
D to A 300 feet.
A Point of accident.
C Where Mr. Stormo crossed C. & N. W.
D Where Mr. Stormo fast looked for train.
E Mr. Stonno’s point of vision when last he looked.
Stormo’s testimony 'tended- to show that when he crossed the Northwestern track going west, -at point C, he looked both ways, north -and south, -along tine Great Northern Railway track; that he could see south along the track, probahl-y 700 feet, -and that n-o train was in -sight in that -direction; that he oou-l-d see the Northwestern track about 100 feet beyond Kemp Ave., and about -the same distance along the Great Northern; that he proceeded westward on First Ave., -at a speed of five or six *188miles an -hour, and when within 300 feet of the Great Northern track, at the .point indicated as “D,” he again looked north and south along the Great Northern track, but could see no train; that there were some rigs and an auto- on the west side approaching the Great Northern -crossing from the west, which he thought he might meet at the crossing; that the Great Northern Hack is on a grade about six feet higher than the general level, requiring a steep rise of the street, where it passes over the track; that he -last looked south along the Great Northern track from [joint “I)’’ on First Ave., and did not again look south, because' lie knew where the railroad crossing was, and had never seen a train coming fast, from that direction; that when the front wheels of the -auto were within two or three feet of the railroad track, at the crossing, he saw the end of the box car, T5 or 20 feet distant, being backed down on him; that it was then too late t-o stop the automobile; that he put on all the [lower, and just got past the middle of the track, when the box car struck the auto,-injuring the auto and himself; that he heard no whistle -blown nor bell rung, nor sound of the train before the accident; that the automobile ran very smoothly and was the quietest machine he ever rode on; that the last time he looked for the train on the Great Northern track, wa-s when he was 300 feet away. There was conflicting evidence as to the speed at which -the train was moving at the time of the accident. The plaintiff’s evidence' tends to show a -speed of 10 or 20 miles an hour; that -o-f the defendant 4 to 6 miles an hour. An ordinance of the city of Watertown prohibiting the running of locomotives or cars in the city limits, at a greater speed than six miles an hour, wa-s also put in evidence by plaintiff.
Youngquisf, plaintiff’s witness, testified, that he was going-east in his automobile on First Ave., -near the point of the accident, -and stepped west of the crossing to let the cars pass; that it -was a still morning, and his attention was attracted by the puffing of the engine -and the smoke going straight up; plaintiff also introduced several witnesses who testified that they were in a position to hear, but -did not hear any whistle or bell, until 6h-e train was from 75 to 200 feet from the -crossing, when several short whistles were blown.
Defendant’s engineer testified that -the engine was equipped *189with an automatic air bell ringer which rang all the time the train was moving on the Great Northern track; that he stopped and whistled about ioo feet south of where the Great Northern crosses the Northwestern, near Kemp Ave., and whistled right after crossing the avenue, and again gave a danger whistle, just before the accident; the fireman on the train testified that the locomotive was equipped with an automatic air bell ringer, that he oiled the bell that morning, and that it rang- all the time while the train was proceeding north on the track; that when they came to the crossing at Kemp Ave., they stopped and picked up the brakeman; that the engineer gave the crossing whistle, gave the road whistle, and again, near the time of the accident, the danger whistle; that he was on the left side of the engine, and saw plaintiff’s auto from the time it crossed the Northwestern track on First Ave.; that when near the Great Northern track, plaintiff slackened speed and looked at the witness; that witness thought Stormo intended to stop, but that Stormo looked toward the car and engine, and appeared tO' think he could make the crossing; that when the engineer saw him making his .run to cross the track, brakes were applied, the engine reversed, and everything done that could be, to avoid the accident. The conductor gave similar testimony. Some ten other witnesses on behalf of the defendant testified that they heard the hell ring and the whistlle blown, substantially as testified to by the members of the train crew. The evidence was conflicting as to every material fact, except the one fact that the plaintiff Stormo, as he approached the crossing of the Great Northern track, did not look south in the direction of the approaching train, at any time after he was within 300 feet - of the crossing.
[1] The finding .of the jury upon conflicting evidence as to defendant’s negligence, was in favor of plaintiff, and upon a motion for direction of a verdict, this court must assume that the facts were as alleged by plaintiff.
[2] It is contended by appellant that the plaintiff as a matter of lav;, was guilty of contributory negligence, in failing to look in the direction of the approaching train at any point within 300 feet of the crossing, and that its motion for direction of a verdict should have been sustainel.
*190It must be assumed therefore, that ¡the employees oí defendant failed to blow the whistle or ring the bell as the cars .approached the crossing where -the 'accident occurred. In this connection appellant contends 'that the testimony of plaintiff’s witnesses 'that they did not hear the bell or whistle, is not sufficient to overcome positive testimony ¡of many un-impeac'hed and disinterested witnesses that they heard the whistle and- bell.
[3] It is appellant’s contention that the evidence o'f plaintiff’s witnesses as to the approach -of cars on the Great Northern track, the ringing of the bell and the blowing of the whistle is purely negative, and raises no -conflict of evidence which would justify submission of the facts to the'jury.
'‘Evidence is positive when a witness states that an event did' or did not occur, or that ¡a certain matter is or is not so. It is negative when he in effect says; -that so far as he knows, the event did not occur or that he did not see or hear a certain thing.” 9 Enc. of Evi. 865-1. Id. 865 * * * 2: “Where the opportunities for knowledge of two witnesses were the same, and the attention of -both was equally engaged, the testimony of one stating that the event did not occur is, -considerations- of credibility being laid aside, equal to that of the -one stating that it did occur.” Id. 865. “Negative testimony within the meaning of the term as it is used here, must in order to- have any weight as evidence, tend to contradict positive testimony of the other party.” Id. 866. “Negative testimony does mot -contradict unless it appears that the witness was in such a position and was giving such -attention to -the matter, that he might reasonably be expected to notice it.” Chamberlayne, Modern Law of Evidence, §§5°; 1757-
A great number of decisions may be found' which hold in effect that -the testimony of a witness' that “he did not -see,” or “did not bear,” under circumstances -which show th-.-t the witness was not in a position where he must have seen or heard, or was not giving such attention to the matter that -he might reasonably be expected to have seen or heard, i-s entitled to no weight in the presence of -affirmative evidence, and -does -not create a conflict of evidence justifying a submission of the question to the jury as -one of fact.
Culhane v. N. Y. Cent. & H. R. R. Co. 60 N. Y. 133; Mc-*191Keever v. N. Y. Cent. & H. R. R. Co. 88 N. Y. 667; Wickham v. C. & N. W. R. Co., 95 Wis. 23, 69 N. W. 982; Ives Administratrix v. Wis. Cent. Ry. Co., 128 Wis. 357, 107 N. W. 452; Frank v. Pa. R. Co. (N. J. Sup.), 55 Atl. 691; Eissing v. Erie R. Co., 73 N. J. Law 343, 63 Atl. 856; Smith v. N. Y. Cent., H. R. R. Co., 41 App. Div. 614, 58 N. Y. Sup. 63; Wellbrock v. Long Is. R. Co., 31 Misc. Rep. 424, 65 N. Y. Sup. 592; Jones v. Lehigh & N. E. R. Co. 202 Pa. 81, 51 Atl. 590; Keiser v. Lehigh Val. R. Co., 212 Pa. 409, 61 Atl. 903, 108 Am. St. Rep. 872; Bohringer v. Campbell, 154 App. Div. 879, 137 N. Y. Sup. 241; Clark v. N. Y. Cent. & H. R. R. Co., 17 Misc. Rep. 113, 40 N. Y. Sup. 730; Hintze v. N. Y. Cent. & H. R. R. C., 149 App. Div. 217, 133 N. Y. Sup. 687.
On the contrary, where witnesses who were sufficiently close to the train to have heard a whistle, or bell if it had been rung-, testified that they heard neither whistle nor bell, the evidence was held sufficient to justify the finding of the jury, that neither bell nor whistle was sounded. Westervelt v. N. Y. Cent. & H. R. R. Co., 86 App. Div. 316, 83 N. Y. Sup. 827.
In Mackerall v. Omaha & St. L. Ry., 111 Ia. 547, 82 N. W. 975, where plaintiff testified he heard no signals, and other witnesses, in a situation to hear, without their attention being diverted, testified that they heard neither bel-1 nor whistle before the accident, the court held that such evidence was not merely negative, but raised an issue of fact for the jury.
In Whaley v. Vidal, 27 S. D. 627, 132 N. W. 242, we think the same rule was- recognized, when this1 court said:
“There was evidence tending to corroborate the engineer and fireman, that the whistle was blown and the bell rung before the train reached the crossing, but in view of the fact that neither Lysle Rowe nor his wife, heard any bell or whistle, there was at least a conflict in the evidence upon that subject.”
In Jones on Evidence, Civil Cases, it is said:
“It is a general rule of -evidence that affirmative testimony is stronger -than negative; in other words, that -the testimony of a credible witness -that he saw or -heard a particular thing at a particular time or place, is more reliable than that o-f an equally credible witness who with the same opportunities testified that he did not see or hear the same thing at tire same time and place.’ * ^ But *192the rule that .positive testimony is of greater weight than negative has some important exceptions and it should never come in conflict with the general rule that the weight of the testimony, should be left to the jury. . Such testimony is admissible and, together with corroborating circumstances, may outweigh positive testimony. As will be seen from the cases already cited, this question of the weight to be given to negative testimony often arises in railroad and other accident -cases where it is claimed that signals were not given. In such cases, the question is purely for the jury, and -it has often been held 'that negative evidence was sufficient to sustain the verdict.”
The statement that negative evidence is sufficient to carry an issue to the jury, perhaps should be subject to- the qualification that -it must be such as to be contradictory of the opposing evidence.
“If the attention of the witness is especially directed to the train and its signals, and at the same time a distinct impression is made upon his mind that the signals are not given, his testimony (that he did not hear them) is in every particular as trustworthy, though negative, as would be the evidence of another witness similarly situated, affirming' that the signals were given.” Chicago R. Co. v. Stepp, 164 Fed. 785, 90 C. C. A. 431, 22 L. R. A. (N. S.) 350; Flennor v. Ore. Short Line R. Co., 16 Ida. 781, 102 Pac. 897.
“And a witness may be in any conceivable attitude of attention or inattention which will give his evidence value or leave if with little or no weight; hut where his position is such that the sound would have -been likely to attract his attention, if the bell had been rung, his failure to 'hear it -is some evidence that there was none rung-.”
Menard v. Boston R. Co., 150 Mass. 386, 23 N. E. 214; Slattery v. N. Y. Cent. R. Co., 203 Mass. 453, 29 N. E. 622, 133 A. S. Rep. 311; Daniels v. N. Y. N. H. & H. R. Co., 183 Mass. 393, 67 N. E. 424, 62 L. R. A. 751; Gibson v. Bessemer R. Co., 226 Pa. St. 198, 75 Atl. 194, 27 L. R. A. (N. S.) 689, 18 Ann. Cas. 535; Chesapeake etc. R. Co. v. Hawkins, 124 S. W. 836 (Ky.).
In Foley v. N. Y. Cent. & H. R. R. Co., 197 N. Y. 430, 90 N. E. 1116, 18 Ann. Cas. 631, the court holding the evidence iu that case to be purely negative, said:
*193“It must appear that they' were looking, watching, and listening for it; that their attention was directed to the fact, so that the evidence will tend to some extent, to prove the negative.”
.Plaintiff’s testimony tends to show that he was looking and listening for trains on both roads when ¡approaohing the crossing. He was in >a ¡position where he could have seen or heard an approaching train. Plis testimony was that he neither saw nor heard a train or any signals. He was corroborated to some extent by other witnesses. We think this evidence required the submission of the issue to the jury.
[4] The credibility of witnesses and the weight and preponderance ,of evidence were for the jury and, under the settled rule of law, this court is not permitted, when there is a substantial conflict of evidence, to disturb' their decision -upon controverted questions of fact. We are bound, therefore, to assume, as found by the jury, that the defendant’s employees failed to. ring the bell or sound the whistle as the train approached the crossing at which the accident occurred.
The remaining question is -whether plaintiff, as a matter of law alone, was guilty of contributory -negligence which would require direction of a verdict, -by reason of has failure to look in the direction whence the train approached, at any time after he was within 300 feet of the crossing. Pie testified that when within that distance, he looked south, and could see something like 850 or goo feet down ¡the track, and that be neither heard nor saw any approaohing train, and that he was traveling at a speed of five, six or seven miles an hour, as he approached the crossing. Assuming that defendant's trade was clear to the south for a distance of eight or nine hundred feet, and that plaintiff, although looking and listening, neither saw nor heard' cars approaching from- the south, the question whether, under all the circumstances, he was guilty of contributory negligence, in assuming that no cars were approaching from that direction, and attempting to proceed -over the crossing, without 'again looking south, we think was a question of fact properly submitted to the jury.
In Winey v. C. M. & St. P. Ry. Co. 92 Ia. 622, 61 N. W. 218, the court held that, under any concewdple circumstances, it was error *194to instruct the jury that it was the duty of one to look and listen for approaching trains: at all points' on his passage across the track, and that his failure to do so, was contributory negligence which would bar recovery. The court said:
“The rule no 'doubt iis, ¡that if the traveler, having- looked and listened, without seeing or 'hearing an approaching train, within a reasonable distance of the crossing, is, by reason of the neglect of the railroad company to' blow the 'statutory’ whistle, run upon andi injured, liability attaches therefor.”
In Harper v. Barnard, Receiver, 99 Ia. 159, 68 N. W. 599, in announcing- the same rule, the court said :
“Plaintiff was bound to exercise the care that ordinarily careful, prudent persons would exercise under the same circumstances. While he liad no right to proceed without looking and listening, upon the assumption that no> train would pass from either direction, he did have the right to proceed, upon the assumption that the signals for highway crossings, required by Sec. 2003, of MeClean’s Code, would be given. * * * The negligence charged against the defendant was a failure to give these signals' .and by their verdict, the jury must 'have found that they were not given, and in view of this fact, and the evidence as to the care exercised by the plaintiff, in twice stopping and listening, and in looking both ways, we think the jury was warranted in finding that he was not guilty of contributory negligence.”
In Moore v. C. St. P. & K. C. Ry. Co., 102 Ia. 595, 71 N. W. 569, the court said:
“The contention is that he did not look at the time and place when and where the exercise of ordinary care required that he should have looked and ■listened. * * * We do not think it should be .said as a matter of law, that plaintiff was guilty of negligence 'in not again looking- westward, after he passed the point sixty feet south. He had- looked westward at Shaw street, and from the sixty-foot point, and saw nothing approaching, was listening and heard nothing. It was 'bis duty to1 look east as well as west, and 'he did so. While we do not say that the plaintiff was not negligent, we do not think that it should be said as a matter of law, that he was. Whether in view of all the circumstances under which he acted, he was negligent, is a *195question about which we think men may honestly differ', and therefore one that should1 have been submitted to the jury.”
In Mackerall v. Omaha & St. L. Ry., 111 Ia. 547, 82 N. W. 975, the plaintiff, approaching a crossing, looked and listened, when 100 feet from th,e railway, without seeing dr hearing a train. The court following the Winey case, held that plaintiff could not be considered guilty of negligence as a matter of law, in failing to again -stop, look and listen, saying:
“Under die circumstances disclosed, it was for the jury to s'ay whether the plaintiff stopped within a reasonable distance from the track, or was bound in the exercise of ordinary care, to do so again within the 100 feet.”
Renwick v. N. Y. etc. R. Co. 36 N. Y. 132. In White, Personal Injuries on Railroads, Vol. 2 § 1014, the rule is stated:
“And where the evidence shows that the traveler 'did stop and listen for the train, it is generally held, under all the evidence, a question for the jury, whether this was a proper place to listen for the cars, and the travéler will not be held guilty of negligence, as a matter of law unless the evidence is all one way, to the effect that it was not a proper place to stop.”
The care which a person who crosses a railroad track in a city, is required to use, as well as that which the company is required to use, varies with the surrounding circumstances and is .a question of fact for the jury.
Texas & P. Ry. Co. v. Code, 166 U. S. 606, 17 Sup. Ct. 703, 41 L. Ed. 1133, 67 Fed. 71, 14 C. C. A. 310; St. L. & S. F. Ry. Co. v. Knowles, 6 Kan. Ap. 790, 51 Pac. 230; Garran v. Mich. Cen. Ry. Co., 144 Mich. 26, 107 N. W. 284. We think the trial court did not err in overruling .appellant’s motion for a directed verdict.
[5] Appellant assigns as error the refusal of [certain instructions. The instructions given are set forth in. full in the record. The instructions requested, we think, are fully covered by instructions given, and appellant could not have been prejudiced by the refusal of the trial court to give ‘the requested instructions. Appellant also assigns as error certain portions of the instructions given hy the court. We have 'carefully .examined the instructions given, and are satisfied -that, taken as .a whole, they correctly and fully state the law of the case, a® announced in this opinion.
*196It was unnecessary thus fully to consider ¡the questions presented on this appeal except for the aid it may give the trial court, in view of the fact that a new trial must ¡be grannted because of error in the exclusion of material evidence. ’
[6, 7] Mr. Hauff, who was one of the plaintiffs, was called as a witness on behalf of defendant. Among other things, he was asked by appellant’s counsel whether, shortly after the accident, he did not have a conversation with his partner, Stormo in which Mr. Stormo, in substance stated to him, “that this thing would not have happened, if he had 'held tire wheel, hut that Burns was ■holding the wheel while he was putting on his automobile gloves.” The question was objected to as incompetent, improper cross-examination, and ’ not proper impeachment, which, objection was sustained, and appellant assigns this ruling as error. The -record purports to show that Ilauff was called as a witness, under Chap. 72, Laws of 1909, “for cross-examination.” This court had occasion to consider this statute ‘in the case of Langford v. Issenhuth, 28 S. D. 451, 134 N. W. 889. In that case it is said:
“The'main purpose -of this statute is to permit an adverse party to be called as a 'witness to prove, or to be interrogated concerning, facts material to the case of the party calling him, and that such witness may be called to1 prove a single material fact or any number of material 'facts, even -the whole case. The facts as to which the party calling such witness may desire to examine him are wholly within his discretion. * * * A witness who is a ¡party to the action -is therefore 'called the same as any other witness, to prove certain facts, and not for -cross examination.”
But because he' is deemed an adverse witness, the statute provides that the mode in which he is examined may be that ordinarily employed in .cross-examination. The whole case may ■be thus fully and minutely investigated, and objections on the ground of materiality -are not favored. If the evidence sought to be elicited from the witness Hauff, -was material, it was- clearly erroneous to sustain the objection', on tíre ground that it was not proper cross-examination. Is the evidence sought to' be elicited by this question, competent or material?
[8] The precise issue decisive of the case, as submitted to' the *197jury, was whether Stormo was guil-ty of 'contributory negligence which would 'bar plaintiff’s right of recovery. Plainly 'the purpose of this question was to elicit evidente of statements or admissions by the plaintiff Stormo, from, which an inference of negligence on his part, might be drawn by the jury, namely: that while (approaching the crossing, he (Stormo) had surrendered control of the machine to his -passenger, Burns, and was himself engaged in putting on his automobile gloves, at the time, when, if he himself had retained control of the automobile, the accident would not have occurred. It is .true, no offer of proof was made, but the question itself, .disclosed the materiality of the evidence sought to be elicited, and no- -offer of proof was- necessary. It is impossible for this1 court to determine what effect such evidence, if received, may have ¡had in determining the verdict of the jury. We are clearly of opinion the exclusion of this evidence was reversible error, for which a new trial must be granted.