Opinion by
Qrlady, P. J.,The plaintiff’s husband was killed at a grade crossing by an engine of the defendant company. The trial resulted in a verdict in favor of the plaintiff, which was sustained after a full hearing by Judge Searles, (the trial judge, Little, ,J., having died prior thereto). The principal reason urged for a reversal of the judgment is, that the plaintiff was guilty of contributory negligence.
There can be no doubt as to the rule of law to be applied to such a case: Strawbridge v. Hawthorne, 47 Pa. Superior Ct. 647, “In applying the test, the plaintiff must be given the benefit of every fact, and inference of fact pertinent to the issue, which the jury could legitimately find from, the evidence before them;” and the duty of the court is as clearly defined in Kreamer v. Perkiomen R. R. Co., 214 Pa. 219, in which it is held that in an action against a railroad company to recover damages for death at a grade crossing, the presumption is that the deceased did his duty to stop, look and listen, before entering upon the tracks. Whether that presumption is rebutted is for the jury, unless the evidence to the contrary is clear, positive, credible, and either uncontradicted or so indisputable in weight and amount, as to justify the court in holding that a verdict against it must be set aside as a matter of law.
A jury would be warranted in concluding that the evidence shows, that the crossing on which the decedent was killed was largely used by the traveling public and *252was ordinarily protected by gates, but at the time of this accident no person was in attendance; that the locomotive was running light, at a speed of from forty to forty-five miles an hour; that no whistle was blown nor bell rung, .nor was there any other warning given. The accident occurred about 6:40, on a September- morning, “when it was cloudy, foggy, kind of a wintry-dark morning” ; that the crossing was on a curve, and the view of the approaching train was obscured by objects near to the railroad tracks; that the deceased stopped at the usual place for observation and not hearing an approaching engine proceeded on his travel, and after having crossed one of the tracks was struck on the second or southbound one.
We have carefully examined this record, and find ample evidence to warrant the conclusion reached by the jury; that the defendant was negligent, and that the decedent was not guilty of contributory negligence.
For the reasons more fully stated in the opinion filed by the court below in discharging the motion for judgment n. o. v., the judgment is affirmed.