Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Harwood & Springmeyer, for Appellant.
Huskey & Springer, for Respondent.
By the Court, Coleman, J.:
Respondent, who was plaintiff in the lower court, on December 17, 1913, while out in his automobile in the city of Reno, drove along the east side of Elm Street, and upon reaching Sierra Street turned in a southerly direction; and there being a wagon backed up against the sidewalk, with a horse hitched to it, whose head came within three feet of the track of appellant, an auto-truck standing just beyond the horse and wagon, and
another horse and wagon standing in a similar position to the one first mentioned and a short distance beyond the auto-truck, it was necessary for respondent either to go along the street-car track until getting past the last horse and wagon mentioned, or go on the opposite (left-hand) side of the said track. Just as respondent turned in front of the first horse and wagon, he saw a car of appellant about 225 feet away, approaching at a speed approximated at from about twenty-five to thirty miles an hour. There was also an automobile on the left-hand side of the track, traveling in a northerly direction.
Well, I was turning around, had to go around the horse, and it put me on the track; I could not do anything else. If I had pulled across the street, it would have been against the law; I would have run into an automobile, besides.
Respondent speeded up his automobile and tried to get past the second horse and wagon and turn off of the track to the right, and just as he was leaving the track the rear end of the automobile was struck by the street car (which weighed about eighteen tons), and carried a distance of about twenty-five feet back upon Elm Street, badly damaging the automobile.
Respondent brought suit to recover damages, and upon the trial, plaintiff having rested his case, a motion for non-suit was interposed, which being denied, the case was submitted on plaintiff's evidence. The jury brought in a verdict for the plaintiff. From a denial of a motion for a new trial and the judgment in favor or respondent, appellant brought the case to this court.
It is contended that the court erred in denying appellant's motion for a non-suit. It is urged that, as witnesses Weck and James were going in the direction of the approaching street car, it was impossible for them to estimate the speed of the street car. The case of Chicago Gen. R. Co. v. Novaeck, 94 Ill. App. 178, cited in support of the contention, is not in point. That is a case where the court said, his (plaintiff's) evidence shows that his attention and efforts were directed to urging
his team so as to get off the track, and consequently he could not estimate the speed of the train. But an entirely different theory is urged here. We cannot say that the evidence as to the speed of the street car was not substantially correct. Nor is the fast that the witnesses did not undertake to fix the speed of an automobile, which was going along the left-hand side of the street-car track, any reason to assume that they could not form a fairly accurate estimate of the speed of the street car. Their attention was centered upon the street car, while they ignored the automobile, so far as estimating its speed.
 The point most seriously urged under this assignment is the contention that the physical facts flatly contradict the testimony of the witnesses, and consequently the jury should not have been permitted to consider the case. In the case of Mandel v. Washington Water Power Co., 144 Pac. 921, the Supreme Court of Washington uses this language:
Physical facts which are undisputed and speak the truth with unerring certainty must control.
This court, in the case of Knock v. Tonopah & G. R. Co., 38 Nev. 143, 145 Pac. 940, says:
It is urged that the case should be reversed because the plaintiff's testimony is contradicted by physical fact. If any physical fact made it impossible for the engineer to back up without signal and crush the respondent's arm, such fact would control, and the testimony in case of respondent would fall. If his testimony regarding any matter essential to his recovery were contradicted by any physical fact, the case would have to be remanded. Testimony contrary to a physical fact regarding a matter which is not controlling may weaken the credibility of the witness, but is not ground for reversal.
With the general rule that undisputed physical facts which speak the truth unerringly cannot be overcome by oral testimony we most heartily agree, but the testimony in this case does not bring it within the rule. If two engines had approached each other along a railway track
at the rate of 25 miles an hour and were 400 feet apart, it could be told exactly how long it would have taken them to meet. In this supposed case we have two fixed, positive facts to figure on, namely, the distance the engines are apart and the exact speed at which they are traveling. If a witness were to testify that it took two minutes for the two engines to collide, we could ascertain the correctness of his testimony by invoking the science of mathematics. Such is not the situation in the case before us. Everything was approximated. The distance between the automobile and the street car was fixed by the testimony at about 200 or 225 feet, the speed of the automobile at about 4 to 7 miles an hour, and of the street car at about 25 to 30 miles an hour. So there are three elements approximatedthe distance between the street car and the automobile, the speed of the automobile, and the speed of the street car.
[2-4] In view of the well-established rule that a case should not be taken from a jury on a motion for non-suit where reasonable men might fairly differ on the questions of fact, and that the court must construe the evidence most favorably to the plaintiff when such a motion is under consideration (McCafferty v. Flinn, 32 Nev. 273, 107 Pac. 225), we cannot say that the court erred in denying the motion.
 It is urged that the evidence shows such contributory negligence on the part of the plaintiff as to preclude his recovery, in that he should have looked and listened before turning onto the street-car track at Sierra Street. Such is the well-known rule applicable to steam railroads, but we think the better rule and the weight of authority are to the contrary so far as street-car lines are concerned. The Supreme Court of Colorado, in Philbin v. Denver City Tramway Co., 36 Colo. 331, 85 Pac. 631, lays down the following rule:
The duty imposed upon persons crossing steam-railway tracks to stop, look, and listen, is not rigidly applied to persons traveling ...