dissenting:
Our brother who writes the majority opinion says, “that the facts in this case make it a close one.”
In my opinion the undisputed facts convict the plaintiff of contributory negligence. He had been driving his automobile along the highway in close proximity to one of defendant’s cars which was going in the same direction as the plaintiff. In fact the testimony shows that the trolley car and the automobile ran side and side for a considerable distance when the former stopped to take on passengers. The plaintiff sought to establish by his testimony that the trolley car was running much faster than his automobile. But he admits that they both ran at the same speed for a considerable time and when the trolley car stopped to take on passengers the plaintiff drove his automobile upon the trolley track when he admits that he could not see over 100 feet back along the track. The plaintiff admits that he was running his automobile from fifteen to twenty miles an hour and it is *628highly improbable that the trolley car was running at a much greater speed within a few moments after it stopped to take on passengers. It does not appear from the testimony that the plaintiff was under any necessity whatever to leave the dirt road and go upon the trolley track a few rods ahead of the, car which he was bound to know would follow him as soon as the passengers were taken on. The reason the plaintiff gives for going upon the track is that he met a team. But it is perfectly apparent that he could have checked his speed and passed this team without going upon the track. In my opinion, in the circumstances disclosed by the testimony, the plaintiff was clearly guilty of contributory negligence in leaving the road provided for automobiles and other vehicles and going in front of the trolley when he knew it was very close in his rear. In such case he cannot recover: McCracken v. Traction Co., 201 Pa. 378. In that case it is said in the syllabus: “A person who is struck by a car of a street railway company in crossing its tracks cannot relieve himself of the charge of contributory negligence by proving the unlawful speed of the car, where the car was within his view just before he reached the track, if he looked.”
In the present case it is perfectly clear from the plaintiff’s own testimony that he knew about where the car was when he drove upon the trolley track. It seems to me that what happened was the thing that any sane person might reasonably have anticipated in case the motorman lost control of his car or it ran faster than the plaintiff’s automobile. I think this case, upon its facts, is controlled by Speakman v. Phila. & West Chester Traction Co., 42 Pa. Superior Ct. 558, and cases therein cited.
I would reverse the judgment without a venire.