Opinion by
Mr. Justice Jones,This action of trespass was brought under the Wrongful Death and the Survival statutes to recover for the death of the plaintiff’s decedent allegedly caused by the negligence of the defendant railroad company. The jury found for the defendant. The plaintiff moved for a new trial, but the court denied the motion and entered judgment on the verdict. The plaintiff thereupon took this appeal. The sole error assigned is the trial court’s exclusion of testimony offered by the plaintiff in rebuttal. An understanding of the circumstances attending the accident is essential.
Washington Avenue in Philadelphia runs east and west and is intersected at right angles by 20th Street. In the middle of Washington Avenue, the defendant railroad company maintains three parallel main run*134ning tracks. There is also a cartway on either side of the avenue along the outside tracks. About 9:30 on a night in December, the plaintiff’s decedent, James Slade, a young man of twenty, while running westwardly from 20th Street on the cartway along the south side of the tracks, stumbled and fell across the near rail of the southern track. At the time there was closely approaching from the east on the same track a freight train drawn by a Diesel engine. Before the train was brought to a stop, a part of the engine ran over Slade and killed him. The point of accident was 90 feet west of the 20th Street crossing. The train had been travelling at a speed variously estimated at from 3 to 10 miles per hour. Its bell had been ringing continuously and its headlight was lighted. The theory upon which the plaintiff sought to impose liability upon the defendant was that Slade had fallen across the track so far in advance of the oncoming train that it could have been stopped before reaching him and the accident thus avoided.
Just prior to the accident, Slade and Betty Waters, his basketball coach, had been walking north on the east side of 20th Street toward the Washington Avenue grade crossing. According to Betty, they “were coming home from a basketball game.” Both resided north of the Washington Avenue crossing. When they got to Alter Street, which is the first street south of Washihgton Avenue, Slade said, “Miss Waters, I am in a hurry.” He then “trotted” across to the west side of 20th Street and ran north to the cartway on the south side of Washington Avenue where he turned west onto the cartway along the southern railroad tract as already described.
In an effort to counteract a very compelling inference from other evidence in the case that Slade had tripped on a spur-siding rail and fallen across the *135track in an attempt to run around the front of the slowly moving train, the plaintiff sought to prove in rebuttal that Slade was at the time of the accident on his way to call upon a girl friend named Lillian Macey who lived at 938 South 23rd Street which was north of the tracks and 3 blocks west of the 20th Street crossing. It was counsel’s evident purpose to argue on the basis of such testimony that Slade was running along the south side of the tracks, intending to cross either at the 21st, 22nd or 23rd Street crossing. And, thus, he would be exculpated from an imputation of contributory negligence if he were not to be found guilty of having tested an obvious danger by trying to cross the railroad tracks in the face of the imminently approaching train. The witnesses whom the plaintiff proposed to call for the purpose of establishing Slade’s intention were Lillian Macey, who, it was said, would testify that, when Slade left her at the conclusion of a visit the evening before, he had declared his intention of visiting her again the next evening after basketball practice, and Betty Waters who was the last person to talk with him.
It is unnecessary for us, however, to decide whether the proffered testimony, although hearsay, was nonetheless competent in the circumstances (see, e. g., Commonwealth v. Marshall, 287 Pa. 512, 522, 135 A. 301) or whether it qualified as rebuttal. If the defendant railroad was guilty of the type of negligence corn tended for by the plaintiff, it was immaterial whether or not the deceased had been guilty of contributory negligence. Hence, the exclusion of the proffered rebuttal did the plaintiff no harm. The only negligence on the part of the defendant suggested by the plaintiff was that the train could have been stopped in time to avoid running over the fallen young man. Whether it could have been was the basis upon which the *136case was tried and submitted. The trial judge fairly and appropriately instructed the jury, — “Now, the theory of the plaintiff appears to be this, that however that boy got on the track, whether it was through his own carelessness in trying to run in front of it and accidentally stumbling and knocking himself dizzy by hitting his head on the rail — however he got there, he was there so long ahead of the train that the train should have been stopped in time. ... Now to sum up on this branch of the case, if that boy ran across the front of the train so close to it that the train could not be stopped in time, the railroad company has done nothing wrong and your verdict must be in favor of the defendant. On the other hand, if he went across there, even if he was careless, and fell when the train was so far away that it could have been stopped and it wasn’t stopped, then your verdict would be in favor of the plaintiff because the defendant had done something wrong, was careless, it should have stopped its train. And [as] I said that is true even if the boy is careless because then his carelessness wasn’t the cause of the accident, it wouldn’t be what we call in law the proximate cause” (Emphasis supplied).
The plain implication of the jury’s verdict is that this unfortunate accident did not result from any negligence on the part of the railroad company. The case was fully tried and was submitted to the jury with utmost fairness and impartiality. The evidence well justified the verdict and no valid reason for disturbing it has been advanced.
Judgment affirmed.