delivered the opinion of the court:
Although the evidence establishes negligence on the part of the defendant, plaintiff cannot recover if his failure to exercise that degree of care which a
He knew a train was about due, and testified that distant abоut 190 feet from the track he com.menced looking towards the east, and, when within fifty or sixty feet of the crossing, stopped his team, and lоoked and listened for an approaching train from that direction; that he did not hear or see one; that he noticed switch аnd other lights from a quarter to half a mile distant, in the direction he looked; that as he approached the track he continuеd to look and listen until within twenty-five or thirty feet of the crossing,' but neither saw nor heard the train which collided with him, but did see the switch and other lights above referred to. He then drove upon the track and was injured. Having testified that he stopped, looked and listened for an approaching train, and not discovering one, his counsel invoke the rule that the credibility of his statements in this respect should have been submitted to' the jury. This rule is not applicable; where there is but one inference which can reasonably be drawn from the undisputed facts. At the point where plaintiff first stopped there was nothing to obscure his view along the track towards the east for a distance of 2,000 feet or more, other than the trunks of a few leafless trees, and a a couple of telephone poles, which would havе done nothing more than momentarily obscure the headlight of the locomotive when a tree or pole was in the direct line of his vision and the headlight. He did notice the other lights referred to; and heces
In such circumstances it seems incredible that he looked toward the east, as he says he did, and failed to notice the rapidly moving headlight when he first began to look, or its proximity when he was within twenty-five or thirty feet of the track, when the headlight must have bеen so distinctive by reason of its brilliancy and relative position to- the other lights' beyond of which he speaks. Clearly, although
Where a physical situation renders the right of a matter clearly beyond all reasonable controversy, there is no' сonflict to be solved by a jury, because no^ just verdict can be rendered contrary to all reasonable probabilities. In such сircumstances the testimony of a witness to that which is physically impossible must be rejected, and a court will treat as unsaid by a witness that which, in the very nature of things, could not be as said. A trial court should not submit to a jury the determination of a fact about which, from all the testimony, there can be no dispute. Plaintiff not having looked for the approach of the train which struck his wagon, failed to exercise thаt degree of care which he should, and it is beyond dispute that such failure was the proximate cause of Ms injury. The trial judge was, therefоre, right in directing a verdict for the defendant.—Northern Pacific Ry v. Freeman,
Many cases are cited by counsel for plaintiff in support of their contention that the question оf his negligence should have been submitted to the jury. These cases, when analyzed, in no sense conflict with the conclusion we have reached, 'because it appears therefrom that the testimony bearing on the subject of the want of care of the party injured was either conflicting or of a character from which different inferences might reasonably be drawn, on that question ; or it aрpeared that the injured party had made a mistake with respect to the approach of a train in such circumstances as made it necessary to leave it to a jury to determine whether or not such mistake was the result of a failure to exercisе proper care.
It is also' contended on behalf of plaintiff that he might have assumed that the train would not approaсh the crossing at a greater rate of speed than that allowed by the ordinances of Grlobeville. This question is not presented, bеcause plaintiff says he did not see the train which collided with his wagon; consequently, he cannot be heard to say that in passing ovеr the crossing in question he relied upon being able to do so safely under the belief that the defendant would observe the ordinancеs in operating its trains. A party cannot excuse his act by reliance upon that which, according to his own statement, is not the fact.
The judgment of the district court is affirmed.
Affirmed.