Concurring. — The action is for damages for the wrongful death of plaintiff’s husband alleged to have been caused at a street crossing by the careless and negligent running of the defendant railroad *597company’s train. A demurrer to the declaration was properly overruled since a cause of action- was stated. Warfield v. Hepburn, 62 Fla. 409, 57 South. Rep. 618; Jacksonville Electric Co. v. Schmetzer, 53 Fla. 370, 43 South. Rep. 85; Morris v. Florida Cent. & P. R. Co., 43 Fla. 10, text 13, 28, 29 South. Rep. 541; Atlantic Coast Line R. Co. v. Holliday, 73 Fla. 269, text 281, 74 South. Rep. 479; Tampa & J. R. Co. v. Crawford, 67 Fla. 77, 64 South. Rep. 437.
A fatal injury to the plaintiff’s husband “by running” of the train of the defendant “railroad company,” having been shown under appropriate allegations, it' was incumbent upon the “company to make it appear that” its employees “exercised all ordinary and reasonable care and diligence” to avoid the injury. If there was any appreciable negligence on- the part of the defendant’s employees within the allegations of the declaration, that proximately contributed to the injury complained of, the defendant is liable apportionately for “any damage done.” Secs. 3148, 3149, Gen. Stats., 1906; Atlantic Coast Line R. Co. v. Pipkin, 64 Fla. 24, 59 South. Rep. 564.
If an employee of the defendant company and the plaintiff’s decedent were “both at fault” in causing the injury, the plaintiff “may recover; but the damages shall be diminished” in proportion as the negligence attributable to the defendant company bears to the entire damage sustained. See. 3149, Gen. Stats., 1906; Norfolk & W. R. Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. Rep. 654; Seaboard Air Line Ry. v. Tilghman, 237 U. S. 499, 35 Sup. Ct. Rep. 653; Atlantic Coast Line R. Co. v. Weir, 63 Fla. 69, 58 South. Rep. 641; Florida R. Co. v. Sturkey, 56 Fla. 196, 48 South. Rep. 34.
*598The declaration alleges that the “defendant carelessly and negligently propelled and- ran its train against and upon” the decedent, killing him. There is substantial testimony that the train, without ringing the bell or blowing the whistle, approached the street crossing in the village over which crossing the decedent was passing in an.automobile, and that the decedent was intently observing a cart he was meeting or else looking at a train approaching from the south, apparently not seeing the train that injured him coming from the north until too late to escape it. From the evidence it could be inferred that the train coming from the north may not have been visible to deecdent at a distance and that it gave no warning by bell or whistle or its approach while the decedent was giving attention to a train coming from the opposite direction, there being two tracks at the point. The track of the train which the decedent was observing, was safely crossed by him, but in crossing the other parallel track the train thereon coming from the opposite direction fatally injured him. The instincts of self-preservation and the known disposition of men to avoid injury to themselves may support an inference of fact from the circumstances shown that the decedent exercised ordinary care. German-American Lumber Co. v. Brock, 55 Fla. 577, 46 South. Rep. 740.
Conflicts in the testimony, and the credibility of witnesses as to the essential facts affecting defendant’s liability under .the law, were determined by the jury in rendering a verdict of liability which has substantial evidentiary support,, and there is nothing to indicate that the jury were not governed by the evidence and the law stated in the charges of the court, that were fair and not clearly erroneous as applied to the evidence under the issues.
*599The amount of the award does not indicate that the jury failed to diminish the damages in proportion as the decedent’s negligence, if any, bears to the entire damage. Florida East Coast Ry. Co. v. Frederitzi, 77 Fla. 150, 81 South. Rep. 104.
This ease in some essential features is quite unlike the cases of Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 South. Rep. 247; Seaboard Air Line Ry. v. Tomberlin, 70 Fla. 435, 70 South. Rep. 437; Seaboard Air Line Ry. v. Smith, 53 Fla. 375, 43. South. Rep. 235; Tampa Electric Co. v. Bourquardez, 72 Fla. 161, 72 South. Rep. 668; Live Oak, P. & G. R. Co. v. Miller, 72 Fla. 8, 72 South. Rep. 283; Seaboard Air Line R. Co. v. Barwick, 51 Fla. 304, 41 South. Rep. 70; Louisville & N. R. Co. v. Padgett, 71 Fla. 90, 70 South. Rep. 998.
The judgment should not be reversed or a new trial granted in any case, civil or criminal, for errors in rulings upon the admission or rejection of evidence or for errors in giving or refusing charges, or for errors in any other matter of procedure or practicó, unless it shall appear to the court from a consideration of the entire cause that such érrors injuriously affect the substantial rights of the complaining party. Nor should a judgment be reversed or a new trial granted on the ground that the verditc is not sustained by the evidence, unless it appears that’ there was no substantial evidence to support the finding or that upon the whole evidence the verdict is clearly wrong- or that the jury were not governed by the evidence in making their finding. Welles v. Bryant, 68 Fla. 113, 66 South. Rep. 562. See also Peacock v. Our Home Life Ins. Co., 73 Fla. 1207, 75 South. Rep. 799; City of Jacksonville, v. Glover, 69 Fla. 701, 69 South. Rep. 20.