dissenting:
The learned trial judge held that the plaintiff was guilty of contributory negligence and on that ground directed a compulsory nonsuit. The plaintiff and another witness were called in his behalf. It was admitted, however, on the record that fourteen other witnesses would corroborate the evidence given by the two witnesses who testified.
The facts are not in dispute. About 8 o’clock on the evening of July 11, 1903, Timler, the plaintiff, drove a one horse bottling wagon east along the south side of Clearfield street, which runs almost east and west. This street opens into Kensington avenue on which the defendant company operates a double track electric car line. When Timler gob to the house line on the west side of Kensington avenue he looked south and saw no car. He then drove on and, as was his custom, looked at the window in a barber shop on the opposite side of Kensington avenue and saw no reflection of an approaching car. When he gob even with the curb on the west side of Kensington avenue he looked again and saw a car coming from the south at a distance of 333 feet. Timler then says he knew he had plenty of time to cross in safety. He drove on, and when his horse’s head was over the west rail of the first track and nine feet from the second or north bound track he looked again and saw the car coining at a distance from him about 220 feet. He then struck his horse with the line and started to cross the north bound track, but before he had passed entirely over it the rear right wheel of his wagon was struck on its hub and the tire was struck on the rear part of the wheel. The wagon was thrown to the left and Timler to the right side.
The car approached the crossing at a speed of at least twenty miles an hour, double its ordinary speed at that place. Its speed was accelerated as it approached the crossing and ran more than 100 feet after the collision before it was stopped.
I do not agree with the majority of the court that the facts, which are undisputed and are Stated above, are sufficient to *480convichthe plaintiff of negligence as a matter of law... I.fail-to see wherein .they, disclose any negligence on the part of the; plaintiff. He approached Kensington avenue with the greatest care. Before he had passed the house line and entered the avenue he looked to see if a car was approaching. None was in sight. As he proceeded lié observed the same care, and looked at the barber" shop window .where he could see the reflection of a car if any were approaching. Again he saw none. He proceeded towards the crossing and when in line with the curb on Kensington avenue, still keeping a lookout, he saw for' the first time á car approaching from the south. It was 333 feet distant. He testified that he then thought he had plenty of time' -to cross in safety. He continued to observe the car as it approached the crossing until his horse’s head -was over the' first'rail of the westernmost track of the car line. . His- action subsequent to that timé is, in-the judgment of the trial court and of a majority of this.court, what convicts him of negligence. Prior to this time it is not claimed by anyone that he failed to observe the care required of him, but the attempt to cross the. north bound track under the circumstances is, in the opinion of the niajority of the court, sufficient to convict him of negligence, The majority opinion in effect holds that the plaintiff was negligent because it does not affirmatively appear that in proceed-: ing' across the second track, he did not keep his eyes on the car instead of on his horse and in front of him. That view, how7 ever, overlooks the uncontroverted facts in the case, and.the' plaintiff’s rights and duties thereunder. It was Saturday evening, and a great many people were on and about the crossing. When the plaintiff saw the car at a distance of 220 feet or more, he was committed to crossing the first-track. . He was not driving in front of an approaching car where a- collision was imminent, nor, in his opinion, at all probable. On the contrary, under the evidence, the jury would have been clearly justified in finding that if the car had run at its ordinary speed he could have crossed the north bound track in safety. The undisputed fact is that the car approached the crossing at twice its ordinary rate of speed, and, further; that it struck the -rear of the plain7 tíff’s'wagon justas it was leaving the north bound track.' It-is, therefore, clear and beyond all doubt- that the plaintiff was unquestionably justified in believing .that when he attempted to *481cross the defendant’s second track he could do so with safety. The jury would have been compelled to have so found had the question been submitted to them. The plaintiff had the right, in determining whether he could cross in safety, to assume that the defendant’s car would not run at a grossly negligent rate of speed, but would travel at its usual rate. This court so held in Callahan v. Traction Co., 184 Pa. 425, where Mr. Justice Fell, delivering the unanimous judgment of this court, said: “ The sum of the appellant’s contention is that as the plaintiff saw the car and attempted to cross Thirteenth street ahead of it, he took the chance of being able to do so, and cannot recover. The chance which the plaintiff took was that of crossing the street in safety in advance of a car which approached at the usual rate of speed. It was not the chance of being run down by a car propelled at an unusually high rate of speed of which he had no notice, and which was not checked as the car approached the crossing. A person about to cross a street at a regular crossing is not bound to wait because a car is in sight. If a car is at such a distance from him that he has ample time to cross if it is run at the usual speed, it cannot be said as a matter of law that he is negligent in going on.” Applying the rule there announced with the unanimous consent of this court, the plaintiff was amply justified on the undisputed facts in believing that he could cross the defendant’s second track in perfect safety and hence his attempt to do so cannot as a matter of law convict him of negligence.
It certainly would not have been prudent for the plaintiff to have stopped on the south bound track. This would have endangered himself and bis team. At any moment a car might have approached from the north, and had it been running at the excessive and negligent rate of speed at which it is conceded the north bound car was traveling, there would have been a collision, possibly resulting in the plaintiff’s death. Before passing the house line and until he was committed to crossing the south bound track, a place of danger, the evidence establishes, and it is conceded, that he kept a constant lookout for an approaching car. He was then justified in proceeding to cross the second track, as held in the recent case of Haas v. Chester Street Railway Co., 202 Pa. 145, where this court says (p. 147) : “ If the act of looking, commenced at a point back *482of the house line, continues when it is reached and until the driver is so far committed to the act of crossing that it is more dangerous to attempt to stop than to go on, he has done all the law requires in that regard.” For this court to lay down the proposition that with an approaching car at least 220 feet distant from the crossing the plaintiff was as a matter of law guilty of negligence in not stopping on the first track and in attempting to cross the second track nine feet distant is a step beyond anything which this court has heretofore taken and, as we have seen, in conflict with its own decision. The effect of such a ruling is still to further deprive the public of the use of the streets of a city and turn them over to the unlimited and unrestrained use of the companies operating the electric car systems. While a street car has a right to the use of the street superior to that of the traveler, yet the latter is still entitled to use the street, and that right must be recognized by the street car. Both the street car and the traveler have rights at a crossing, and it is the duty of the company’s employees in charge of the car to approach a crossing with the car under such control that the safety of the traveler, exercising proper care, will not be endangered. It is conceded here, or at least must be, that the motorman in charge of this car was guilty of the grossest negligence. From the time the car was at least 333 feet from the crossing and until the collision, the plaintiff, as he approached the crossing, was in plain view of the motorman. It was the duty of the motorman to put his car under control so that he could have prevented the collision if the plaintiff was on the track. Instead of observing this duty, clearly imposed upon him by all our cases, he continued to accelerate the very high rate of speed at which his car was traveling, until the collision occurred. This grossly negligent act of the motorman was the proximate cause of the collision, and was the only reason why the plaintiff was unable to pass the crossing before the car reached it.
This is not a case where the traveler fails to exercise care by not looking as he approaches the track and is struck by a car which he does not see but could have seen. It distinctly belongs to that class of cases where the traveler, exercising the care required of him by constantly looking for an approaching car, and seeing it, has just reason to believe on the assumption *483the car will run at its ordinary speed, that he can pass the track in safety. I know of no decision which declares him to be at fault when, under such circumstances, he is injured in a collision with an electric street car propelled at a grossly negligent rate of speed.
Believing that the judgment of the trial court is not supported by reason nor by precedent in this or any other jurisdiction I would reverse it and send the case to a jury.