dissenting.
The evidence for plaintiff, briefly stated, tends to establish that as the front wheels of the truck, traveling five to ten miles per hour, reached the western rail, the street car was more than 400 feet from the crossing. The driver of the truck was momentarily delayed, on the crossing, by the northbound traffic on the highway east of the crossing. The truck and the northbound traffic were in plain view of the motorman, but notwithstanding this fact, the speed of the street car, which was said to be from forty to forty-five miles per hour, was not diminished until the impact. This is sufficient, if believed by the jury, to convict the defendant of gross negligence.
*548The majority opinion holds, that the right of the plaintiff to recover is barred, on the ground that his answers to questions propounded to him on cross-examination prove he was guilty of contributory negligence as a matter of law. In so holding, there is invoked the rule that no litigant can be heard to ask that his case be made stronger than he makes it, where it depends upon facts within his own knowledge, and as to which he has testified. See Massie v. Firmstone, 134 Va. 450, 114 S. E. 652.
In the first place this rule is not of universal application, and as most rules, adopted for the determination of justice between man and man, should not be applied as a mere rule of thumb. The record discloses that plaintiff was badly injured in1 the wreck. One leg was so mashed and mangled, that it was only held together by a single tendon, which Was later cut. His head was severely lacerated and bruised, his brain was badly shaken. The doctors testified that at the time of the trial, the injury to the head “would actually give him a greater amount of disability than the injury to his leg,” and this leg was amputated six inches above the ankle; that the head injury would probably induce a complete change in personality; that he suffered with headaches, dizziness, irritability, weakness, lack of energy, and a tendency towards depression and worry. His eyes were weak, watery, and jumpy. Such was the condition of plaintiff according to the testimony of Drs. I. A. Bigger, W. G. Crutchfield, and C. C. Coleman, at the time he was called to testify in his own behalf.
After his examination in chief, he was subjected to a long, vigorous, and severe cross-examination by astute counsel, during the course of which, and in reply to leading and suggestive questions, he gave the answer quoted in the majority opinion. Under the circumstances I do not think plaintiff’s mentality was altogether normal, and in view of the physical facts and the testimony of eye witnesses, other than plaintiff, tending to show that defend*549ant was guilty of gross negligence, I am firmly of opinion that the rule announced in Massie v. Firmstone, supra, and other cases, should not be applied in this case, and that plaintiff’s right to recover should have been submitted to a jury. For these and other reasons, I think the judgment entered by the trial court for defendant should he set aside, and the case remanded for a new trial.