Petition for Rehearing.
(188 Pac. 716.)
Department 1.
On petition for rehearing. Former opinion approved and rehearing denied.
Affirmed. Rehearing Denied.
Mr. F. M. Be Neffe, Mr. Jay Bowerman and Mr. Martin L. Pipes, for the petition.
Messrs. Carey S Kerr and Mr. Charles A. Hart, contra.
BURNETT, J.The burden of the plaintiff’s contention in his petition for rehearing is that the former opinion undertook to control the testimony of the plaintiff himself by the testimony of other witnesses as to the *592visibility of the train before it struck the plaintiff, and that thereby the court assumed to decide a question of fact. The only object in reciting the declarations of the witnesses was to verify the conclusions reached from an analysis of the plaintiff’s own testimony. Neither does the opinion intimate that the plaintiff was hound to prove his freedom from negligence.
The design of the former opinion in computing the situation of the train was to assume as a hypothesis the figures most favorable to the plaintiff as disclosed by the testimony. It will be remembered that some witnesses gave figures in their estimate of the speed of the truck and of the train. There was testimony, of course, that the truck was not moving so fast as two or three miles per hour, but its lowest actual figured rate given was two miles per hour. On the other hand, the most rapid speed of the train as stated in the testimony, that at which it would most likely come upon the plaintiff unawares, was thirty miles per hour. Analyzing the plaintiff’s statement that there was no train on the 600 feet of track over which he had unobstructed vision when he looked at 15 feet from the rails, we find that at 30 miles per hour the train would occupy 13.63 seconds in traversing that 600 feet to the point of collision. In that same 13.63 seconds in traveling at 2 miles per hour the truck would cover 39.52 feet, whereas it was only 15 feet to the rails, and the plaintiff’s statement is that the locomotive struck the front wheels of his truck, slued it around and carried it along, leaving it substantially parallel with the track, about 25 feet from the crossing. If we increase the speed of the truck to 3 miles per hour it would carry it 59.97 feet while the train traveled the 600 feet at 30 miles per hour. In other words, at that rate the *593truck would have cleared the crossing before the arrival there of the train.
Bearing in mind that thus far we are dealing with the figures given in the testimony for the plaintiff and in the most favorable construction of them on behalf of the plaintiff, the conclusion is mathematically inevitable that the train was in the 600 feet open space and visible to the plaintiff, if he had glanced in that direction at any time immediately before he came upon the track. His own testimony is that he did not look again after looking at 15 feet from the rails, until his fore wheels were between the rails. It is undisputed that the locomotive struck him. This could not have happened unless the train was there. If we decrease the speed of either the truck or the train or of both of .them, it makes it all the worse for the plaintiff’s case, because it lengthens the time during which he says he did not look, thus intensifying his negligence. No reasonable man can rightfully say that the train could have traversed the 600 feet of open view without plaintiff’s seeing it if he had looked, and that if he was barely moving as he says, he could not have stopped in time to let the train pass in safety to himself.
Stafford v. Chippewa Valley Electric R. Co., 110 Wis. 331 (85 N. W. 1036), is substantially a parallel case except that the plaintiff was traveling in a horse-drawn vehicle. The court there said:
“The idea that the car moved from a point where it was out of sight from plaintiff’s point of view when she looked, to where it was when the horses became frightened, a distance of some 275 feet, while the horses traveled but about 20 feet, making the speed of the car somewhere about 50 miles per hour or twice as great as the most extravagant testimony of plaintiff’s witnesses puts it, is as well within the bounds of the ridiculous, we venture to say, as anything that has heretofore *594received serious consideration by a trial court or jury. * * Either the observation was not taken and the testimony to the contrary is false, or the car was seen and the testimony the other way is false, and the accident occurred in the driver of the horses attempting to cross the track regardless of the danger, depending upon the vigilance of the motorman to stop his car before reaching the wagon. * * It should be kept clearly in mind that courts and juries go beyond their legitimate sphere by deciding that a fact exists which is contrary to all reasonable probabilities, and that such is the case no matter how many witnesses testify to the existence of such facts. The testimony of the plaintiff that she looked for a coming car when it must have been plainly in view, yet did not see it, cannot be true consistent with possession by her at the time with the capacity for seeing, as to which there is no question. ’ ’
We quote from the petition for rehearing in the case at bar:
“We do not mean to deny the rule established by the cases cited by the court that, if the physical fact exists and the object looked for is in fact in plain sight, the plaintiff will not be heard to say that he did not see it. * * In such cases the courts hold that there is no conflict of fact in the case, since the laws of nature are facts which must be accepted, human testimony to the contrary notwithstanding. But in order to apply that rule the physical fact relied on to discredit plaintiff’s evidence and the evidence of his own eyes, must be a fact uncontroverted by him and incontrovertible by him. * * It must be conceded, stipulated, admitted by the plaintiff himself, or deduced inevitably from facts which he admits or swears to. There is, then, a clear distinction between a case where the plaintiff swears he did not see a train which Ms own testvmony shows was there, and a case where the plaintiff swears he did not see the train because it was not there in fact.”
The only reasonable deduction from the phenomena described by the plaintiff is that the train was there in *595plain sight. . If it was not, he would not have been hurt.
Commenting on the quotation from Wolf v. City Ry. Co., 50 Or. 64 (85 Pac. 620, 91 Pac. 460, 15 Ann. Cas. 1181, 50 Am. & Eng. R. R. Cas. (N. S.) 213), here set down:
“Where the undisputed circumstances show that the testimony of a witness is so impossible or unreasonable that a fair mind must reject it, the court must withdraw such testimony from the jury,”
—the petition intimates that the former opinion overlooked the word “undisputed” in the excerpt. In this critique counsel have failed to distinguish between “undisputed circumstances” and impossible oral declarations. The undisputed circumstances in the instant case are that the plaintiff was approaching a track where the view was unobstructed for 600 feet; that he did not look after passing a certain point; and that the train came along the track and struck him. It is utterly unreasonable and contrary to the very facts upon which he relies for recovery, to say that the train was not in sight. Such oral declarations, when compared with the actual, admitted physical happenings present in the case, are nullities and are to be treated as if they had not been uttered.
In arriving at this result we have not opposed witness against witness or decided a question of fact. We have only pointed out the reason inherent in the plaintiff’s own statement, taken altogether, why his oral declaration that there was no train in sight cannot possibly be true when compared with the “undisputed circumstances” upon which his case depends. As to the rate of speed of his truck which was taken as a basis of calculation, it was one of those named in the testimony, and the aim was to demonstrate that *596at that rate the train must have been in sight at the time the plaintiff last looked for it, and that this would be true no matter how much slower he traveled. Any greater speed indicated by the testimony would have taken him across the track ahead of the train.
The only reasonable conclusion to be drawn from the testimony, giving it the strongest possible effect for the plaintiff, is a dilemma: On the one hand, he looked and did not see the train plainly visible upon the track; or, on the other, having looked, he dawdled on his way to the track or “barely crawled” as he says, without looking, so that the train came upon him when he might have stopped instantly at any time before he reached the track if he had looked as he ought. “Incidís in Scyllam cupiens vitare Charybdim.”
The petition for rehearing is denied.
Affirmed. Rehearing Denied.
McBride, C. J., and Benson and Harris, JJ., concur.