(after stating the facts as above) — Defendant demurred to plaintiff’s evidence which the court denied. The case was submitted to the jury and a verdict was rendered for plaintiff.' From an order setting aside the verdict and granting a new trial, plaintiff appealed. The court granted the new trial on the following ground set forth in the motion therefor, to-.wit :
“First. Because the court erred in giving improper and illegal instructions on behalf of the plaintiff over the objections of defendant.
“Second. Because the court erred in refusing proper and legal instructions asked on behalf of the defendant.
‘ ‘ Third. Because the court erred in not sustaining the defendant’s demurrer to the plaintiff’s evidence, and in submitting the case to the jury. ’ ’
If the plaintiff’s case rested solely on his own evidence, we think he should have been nonsuited. His testimony, that before driving on the track he looked north and south and did not see an approaching car, is not to be believed because opposed to the undisputed physical facts which show that if he had looked he could not have but seen the approaching car. Such testimony is without any probative force whatever and authorizes the trial court to withdraw it from the consideration of the jury; in such circumstances it is its duty to do so to promote substantial justice. Kries v. Railway Co., 148 Mo. l. c. 330; Ferguson & Wheeler v. Venice Trans. Co., 79 Mo. App. l. c. 361.
*92But it seems to us that there is some evidence, though slight, that the motorman in charge of the car was remiss in the performance of his duty, in this, that had he kept a vigilant watch ahead of him he would have seen plaintiff’s perilous position in time to have stopped his ear and avoided the collision; if so, then the defendant company is liable, notwithstanding the fact that plaintiff drove upon the track without looking or listening for an approaching car. Livingston v. Wabash Ry. Co., 71 S. W. (Mo.) 136; Morgan v. Wabash Ry. Co. 159 Mo. 262; Klockenbrink v. R. R. Co., 81 Mo. App. 351, affirmed in 72 S. W. 900; Conrad Grocer Co. v. Railroad, 89 Mo. App. 391.
On the other hand, if without looking or listening for an approaching car, the plaintiff drove upon the track so near to an approaching car that it could not be stopped in time to avoid a collision, the defendant company is not liable, notwithstanding the fact that the motorman failed to sound his gong. In such circumstances both parties would be guilty of negligence and the plaintiff would not be entitled to recover for the reason that there is, in this State, no such thing as comparative negligence, and where the negligence of both parties contributes to produce the injury the plaintiff can not recover. Powell v. Railway, 76 Mo. 80; Yancey v. Railway, 93 Mo. 433; Butts v. Railway, 98 Mo. 272; Boyd v. Railway, 105 Mo. 371; Vogg v. Railway, 138 Mo. 172; Peterson v. Railway, 156 Mo. 552; Holwerson v. Railway, 157 Mo. 218; Conrad Grocer Co. v. Railroad, 89 Mo. App. 534; Millinery Co. v. Railway, 59 Mo. App. 668.
2. For the plaintiff the court gave the following instruction:
“4. The court instructs the jury that if they believe from the evidence, that on the first day of February, 1900, Jefferson avenue, at the place mentioned in -the evidence, was a public street within the city of St. *93Louis, and that the defendant was operating street ears over and along said thoroughfare, and if you find from the evidence that on said day plaintiff was driving his horse and wagon across said Jefferson avenue, over defendant’s track from the east to the west side thereof near the intersection of Greyer avenue, and that whilst so doing defendant’s south-bound car collided with the rear, of plaintiff’s wagon overturning the same and thereby injuring or breaking the right leg of the plaintiff ; and if you further find from the evidence that the motorman in charge of said ear saw, or by the exercise of ordinary care, in keeping watch for persons on foot and vehicles, either on the track or moving towards defendant’s track, and in danger, of being injured by said car, would have seen plaintiff’s wagon on defendant’s track or moving towards it, and in danger of injury by defendant’s car; and thereafter could have averted said collision and injury to plaintiff by the exércise of ordinary care and neglected to do so, the defendant is liable in this case whether plaintiff exercised ordinary care to look out for said cars or not, and in that event the negligence of the plaintiff is no defense to this action, if you also find that plaintiff exercised ordinary care, under all the circumstances, to avoid the accident after he became aware of his danger, and if you so find your verdict will be for the plaintiff and you will assess his damages at such sum as directed in another instruction. ’ ’
Plaintiff testified that he looked before attempting to cross the track; that he saw no car. .The physical facts present at the time conclusively show that if he looked, as he said he did, he saw the car and knew that it was approaching, and with this knowledge continued on in his course without again looking to see whether or not he could cross the track in safety ahead of the car. If this be true then he was guilty of such contributory negligence as precluded his right of recovery. Watson v. Mound City R’y Co., 133 Mo. 246; Boyd v. Wab*94ash Western R’y Co., 105 Mo. 371; Phelps v. City of Salisbury, 161 Mo. 1; Rice v. Wabash R’y Co., 92 Mo. App. 35; Conrad Grocer Co. v. Railroad, 89 Mo. App. 534. The instruction left out of view this very important and damaging phase of the evidence and authorized a recovery upon the assumption that plaintiff was guilty of no contributory negligence, provided he used due diligence to get over the track after the front wheels of his wagon were on it, when, as he says, he first discovered the car was coming and close upon him. We think that under the evidence the instruction is erroneous and misleading and that the trial court did not err in sustaining the motion for a new trial.
The judgment is affirmed.
Reyburn and Goode, JJ., concur; the latter in a separate opinion,