dissenting:
The important question in this case is as to the contributory negligence of the plaintiff. He alleged injury to his team and himself caused by the negligence of the defendant railroad company at a point where the public highway crossed the railroad track in the town of Bloomsburg. It was proved and conceded at the trial that this was one of the most dangerous railroad crossings .within the state of Pennsylvania. On the night of the accident a train was due at this point at about six o’clock in the evening of January 29, 1900, when of course it was dark. The train causing the accident was coming from the north, and as it approached this highway, the track was in a cut which completely obscured the train until it came very near to the crossing. On this night the wind was blowing from the defendant towards the approaching train so that any noise made by the train could not be heard, and the plaintiff claimed, was not heard *622by him. The train was nearing a stopping place and it is conceded was only running at the rate of about five miles per hour. The plaintiff was very familiar with this crossing, having testified that he had passed over it thirteen times on the day of the accident.
The plaintiff testified that his view of the approaching train was cut off by a bluff rising from six to 100 feet, and that looking for the train would give no knowledge of its approach; that on a windy day neither whistle nor bell nor rumble of a train could be heard at the point where he claims to have stopped; that a high wind was blowing, and that he stopped for only a second or two. The question arises, did he use ordinary care in his attempt to cross the railroad track at almost the precise time that a train was due at that point ?
Mrs. Bessie Deihl and several other witnesses knew that the train had not passed this point, and that in driving across the railroad at that time, the plaintiff was in danger of being injured. Mrs. Deihl says she ran after the plaintiff and tried to stop him. Mrs. Casey testified that she called to him. In short it appears that everybody in that vicinity who observed the plaintiff appreciated that he was in danger if he drove on the track, and yet he went upon the track after stopping as he says, one or two seconds, at a point thirty feet from the track.
The testimony of the engineer, his own witness, is as follows: “ Q. At point E, seventy-five feet from the crossing, how far could a traveler see the track eastwardly ? A. When I was standing at E, I placed a man on the track; he could just see me when I was forty feet from station two. Q. At point D, which is forty feet from the crossing, how far could you see up the track? A. I could see my man sixty-six feet. Q. At station C, which is seventeen feet from the crossing, how far could you see up the track ? A. I could see my man 112 feet. Q. At station B, which is ten feet from the crossing, how far could you see ? A. One hundred and fifty feet. Q. Did you make any observation standing at station two, which is the middle of the track? A. At station two the track was visible for 200 feet. Q. Standing on the track itself? A. Standing in the middle of the track, the track was visible for 200 feet.”
The plaintiff testifies that at the time he drove upon the track he saw the light of the approaching train. It therefore appears *623to me that his own testimony and the testimony of his engineer convicts him- of gross carelessness, which of course is contributory negligence. He only claims to have stopped for a second or two thirty feet from the track, and admits that at that point he could not see an approaching train. But at a distance of seventy-five feet from the crossing he could have seen the train forty feet. At forty feet from the crossing he could have seen a man on the track sixty-six feet distant. At seventeen feet from the crossing he could have seen a man on the track 112 feet. At ten feet from the crossing he could have seen 150 feet, and standing in the middle of the track, he could have seen 200 feet distant. These distances are taken from the testimony of the plaintiff’s engineer, and they refer to the distance a man could be seen on the track in daylight looking towards the point from which the train came. It is very certain that a train with a headlight burning in a dark night could easily be seen as far. It therefore appears that the plaintiff, if he stopped at all, selected the very poorest place from which to look and listen. He says himself that he could not see the train from where he stopped, and that owing to the wind blowing towards the train he could not hear it, and yet as a material part of his case he pi’oved by his engineer that there were several other places where he could have stopped and easily have seen this approaching train. The crossing being a very dangerous one he was called upon to use extraordinary care. Instead of doing this the evidence, in my opinion, convicts him of gross carelessness. If a plaintiff is to be permitted to go to a jury with his case on his own unsupported testimony contradicted as the evidence of this plaintiff was by so many witnesses and circumstances which overwhelmingly tend to show that he did not use even ordinary care at this dangerous crossing, then the rule that a traveler must stop and look and listen and use such care as the circumstances require may as well be abrogated.
In my opinion this case furnishes a much stronger example of contributory negligence on the part of the plaintiff than Knox, Appellant, v. Phila. & Reading Ry. Co., 202 Pa. 504. In that case the plaintiff was denied the right to go to the jury on account of his own negligence, and yet it seems to me that his testimony made a stronger case than the one under consideration. I find myself unable to agree with my associates, that *624the learned court below committed no error in submitting this case to the jury. I would reverse this judgment on the ground that the plaintiff was guilty of contributory negligence.
In addition to this a careful examination of the evidence does not convince me that the defendant company was guilty of any negligence in relation to this plaintiff. He was perfectly familiar with the danger of this crossing; he had known it for many years; the train was running at the rate of about five miles per hour; the whistle had been sounded and the bell rung and the headlight was burning and the train was nearly on time and the persons in charge of it had a right to assume that a man who was perfectly familiar with this crossing would not drive upon it at the time and in the manner that the plaintiff did. I am convinced that a proper consideration of the evidence ought to clear the defendant from the charge of negligence, which was necessary to carry the case to the jury.