Dissenting Opinion by
Mr. Justice Simpson :The careful and accurate statement of the evidence, set forth in the opinion of the majority of the court, *203makes it easy to point ont the single matter which compels this dissent.
Decedent was negligent in driving on the track without stopping, looking or listening; and, since the charge of the court practically gave no effect to this requirement, — stating as its reason, in Refusing a new trial: “As we then viewed the matter, and still view it, the question of stop, look and listen had nothing to do with the case,” — it is necessary, of course, to reverse the judgment. It seems equally clear to me, however, upon the evidence produced, we should hot enter judgment for defendant non obstante veredicto.
It appears, as stated in the opinion of the majority, that when decedent’s motor stalled, the train was 158 feet away; if the engineer of defendant had been looking ahead, as it was his duty to do (Steele v. Lake Shore & Michigan Southern R. R. Co., 238 Pa. 295, 300), he would then have seen the danger, and could have stopped in time to avoid the accident. This also he could have done, had he been watching for the signals of the brakemen, who were on the car being pushed ahead, and were put there for the express purpose of signalling to him; for then the train was at least 50 feet from the crossing and going very slowly. Instead, he kept on without even slowing up, running to a point 113 feet beyond the crossing before stopping, though he says he could'have stopped within two or three feet. Assuming this evidence to be correct (as of course we must on a motion for judgment non obstante veredicto), the jury could have found therefrom either that the engineer was grossly negligent when he should have been alert, or that he wilfully ran into the stalled motor; and, in either event, in my judgment, the fact that decedent was theretofore negligent do.es not conclusively determine defendant should not be held liable for its negligence, since, if it had exercised even slight care, there would have been no accident; Moore v. Phila., Wilmington & Baltimore R. R. Co., 108 Pa. 349; Lake Shore & Michigan Southern Ry. Co. v. *204Rosenzweig, 113 Pa. 519; Walsh v. Pittsburgh Rys. Co., 221 Pa. 463, 465; 33 Cyc. 854-7; R. C. L. 963, 969.
I would reverse the judgment and award a new venire.