Opinion by
Mr. Justice McCollum,Between Main street and the crossing on which the plaintiff’s husband received the injury that resulted in his death the only place from which a train coming from the north could be seen for any appreciable distance was where Cron alley connected with Water street. It was therefore the place at which persons intending to drive across the railroad usually stopped, looked and listened to ascertain whether a train was approaching from that direction. It was near the center of Water street about 125 feet east of the railroad and from it, according to the various estimates of the plaintiff’s witnesses, a train coming from the north could be seen from a point from 600 to 1200 feet above the crossing to a point from 200 to 400 feet above it. Unfortunately-the distance from the point where the train could be first seen to' the point where it was lost sight of until it reached the crossing was not ascertained by actual measurement. Between Cron alley and the railroad there was no point from which a train coming from the north could be seen until the horses’ front feet were on the track. But the conditions which render a crossing dangerous do not authorize a departure from the rule wMch requires a person approaching it to stop, look and listen before driving upon it. The nonobservance of the rule is negligence per se and the cause of many casualties which adherence to it would have avoided. A relaxation of the rule through sympathy for those who suffer from the violation of it is not in the interest or conducive to the security of travelers on the highways which cross the railroads or of travelers in the trains of the latter. On the contrary, a strict enforcement of the rule is promotive of the safety of both. In the case in hand the evidence is clear and convincing that the decedent did not stop, look and listen at Cron alley or at any place on *469Water street between Main street and the crossing, but that, without observance of the rule, he deliberately attempted to cross the track, and that the immediate consequence of his attempt was the collision in which he lost his life. To moderate the pace of his team on approaching the crossing was not compliance with the rule nor in any sense an acceptable substitute for it. When near to the crossing he must have seen and heard what was clearly indicative of the approach of a train ; namely, the lowering of the gates and the ringing of the bells upon them. James Ehret and Joseph Hileman who were in the office of the Farnham House waiting for the train heard the bells ring and noticed that the gates were lowered from their upright position to an angle of forty-five degrees, before the deceased passed under them. It is plain therefore that this warning of the approach of a train was disregarded by him.
Henry B. Stark testified positively that the deceased did not stop at any place on Water street between Main street and the crossing. The attempt to discredit his testimony on the ground of a substantial difference between it and his testimony in the suit by the plaintiff against the Philadelphia & Reading Railroad Company for the same occurrence was a failure. It is obvious that there was no merit in the claim that the plaintiff was surprised by his testimony in this case, or that there was any material variance between it and his former testimony.. The learned trial judge said in his opinion refusing to take off the nonsuit that Judge Rice held in the former case “ that the evidence clearly established the fact that the deceased did not stop, look and listen as required to do.” The testimony of Robert K. Hileman did not show that the deceased stopped, looked and listened. The most that can be made of it is that he slackened the gait of his team when near to the crossing.
As the evidence submitted by the plaintiff affirmatively shows that he did not comply with the rule prescribed for the government of persons about to drive across a railroad, there is no room for a presumption that he complied with it. No. circumstances appear in the case to justify or excuse a departure from this rule.’ On the plaintiff’s own showing it was the duty of the court, on the motion of the defendant, to enter the nonsuit.
Judgment affirmed.