The opinion
On Motion for Rehearing.
In its motion for rehearing appellant strongly urges that we erred in failing to hold that appellee was guilty of contributory negligence as a matter of law. It is said that as Bunn approached the railroad crossing there was undoubtedly a time when he could have stopped his car which coincided with the time the Diesel motor was behind the signal stand which appellee says that he saw. Appellant asserts that under these conditions Bunn’s statement that he did not see the Diesel motor is without probative value.
It is conceded that the act of “seeing” involves a psychological, as well as a physical process. We are concerned with perception, a process which encompasses not only the camera-like mechanical action of the lenses and retinae of the eyes but the transmission of stimuli to the optical centers in the brain.
In the trial court it was suggested by appellant’s counsel in his jury argument, that it was -a manifest absurdity, from the standpoint of a normal individual, to say that a person had looked and seen only halfway across a room, where there was no obstruction preventing his seeing the wall directly opposite him, as range of vision and perception, do not stop in mid-space or thin' air. The illustration given is extreme, and’ by contrast it may be pointed out that one may, by use of a camera, take a picture of a distant hill and, upon scrutiny of the developed photograph, discover an animal which he had not perceived at the time the picture was taken. In this instance it could not be seriously argued that the person taking the photograph must necessarily have seen or perceived the animal on the hill. Mental characteristics and attitudes, such as training and attention, are involved. The problem here presented — of the Diesel motor behind the sign, with its proper classification as a question of law or a question of fact — lies somewhere between the two extreme examples given, and this is generally true of most “perception” problems involved in negligence cases.
When and under what circumstances are trial and appellate courts authorized to consider the issue as one of law? The particular facts and surroundings of each case must be considered. For this reason our original opinion sets out the occurrences and circumstances of this case in some detail. The various factual elements therein stated are not of equal importance. Some-may be comparatively remote, but they all have their part in presenting a true picture of the situation relating to and surrounding the collision. As stated in the original opinion, testimony relating to the experiences of others at the particular crossing involved has been recognized as relevant evidence in cases of this kind. Perhaps the most important single factual circumstance lies in the failure of the flasher signal, a controverted issue decided by the jury against the appellant. The effect of such failure in connection with the classification of the approaching motorist’s “perception” as either standard or substandard is fully discussed by the authorities cited in, the original opinion.
*530 We have carefully considered appellant’s motion for rehearing, but adhere to our original holding that the question of appel-lee’s contributory negligence was for the jury, and that its finding upon the issue is not against the overwhelming preponderance of the evidence. The motion is accordingly overruled.