(dissenting).
As plaintiff offered all the evidence and defendant none, I assume such evidence was true. Indeed, by offering it plaintiff committed herself to its truth. The only persons who saw the accident were defendant and a companion sitting beside him. To prove her case, plaintiff offered the statement made by defendant at the coroner’s inquest. Moreover, as she failed to cáll the companion witness, I am justified in assuming his testimony would agree therewith. Now what was the defendant’s testimony thus accredited by the plaintiff’s offer thereof?
“A. The night the accident happened I met Mr. Geibel in this fraternity house and we drove coming out toward Media. We came out Baltimore Pike and were driving along conversing wtih one another. We were coming out Baltimore Pike and after leaving Lansdowne. We were proceeding on the right hand side of the road. I saw this crossing and I slowed up.
“Q. Is there a light at that crossing? A. A blinker. There were no cars coming toward us, in back or to the right or left. I started to resume my speed, going about thirty-three miles an hour, just as I came out from under the light to enter on the bridge, I saw a figure running, coming from my left. This figure was very close to the car and at the same time I saw him I attempted to turn the car away from him to the right but couldn’t on account of the pavement on the bridge so I immediately applied the brakes. At the same time he leaped in the air and he hit right on the top of the radiator and by that time the car was slowing down and we were carrying him.
“Q. How far do you suppose you carried him? A. About forty-five (45) feet
*341“Q. How fast were you going? A. About thirty-five (35) miles an hour. Just as we came to a stop he toppled off.”
“Q. Was he running directly across the Baltimore Pike? A. Running from our left. He gave a jump and lit up on the radiator.
“Q. You had your headlights burning full? A. They were on full power.”
Under the Pennsylvania regulation, the permissible speed was 35 miles an hour. The proof was that the night was clear. The defendant’s car had both headlights burning and they could be seen for from 325 to 300 feet from the crossing. The deceased started to run in the face of the lights of the car, which was so close that, run as he did, the car caught him. These facts — the visibility of the approaching light for more than 300 feet, the legal speed, the car on the right side of the road, the driver slowing up for the crossing, all proved by the plaintiff’s proofs, with no contradiction by any one who saw the accident, the deceased, impelled to run by the nearness of the car and trying to cross before it — I accept as true. Because I am convinced that to allow recoveries in the face of such palpable contributory negligence is to encourage pedestrians crossing main thoroughfares to take needless and reckless risks, I am constrained to note a dissent.