#### Knaell *v.*Pittsburgh, Mars & Butler Railway Company, Appellant.

*Negligence*— Street *railways*— Automobile *collision*— Contribu*tory negligence.*

In an action of trespass to recover damages for personal injuries sustained in a collision between an automobile and a trolley car, *356the defendant is entitled to binding instructions where the evidence shows that the driver of the machine, in approaching a crossing with which he was familiar, proceeded at the rate of five miles an hour, but did not look for the approaching car until he was within ten feet of the tracks and, knowing that he did not have time to cross, attempted to stop his machine, but failed to avoid a collision.

Under such circumstances, the plaintiff was guilty of contributory negligence and there can be no recovery.

Argued April 25, 1924.

Appeal, No. 135, April T., 1924, *by*defendant, from judgment of C. P. Butler Co., Sept. T., 1922, No. 87, on verdict in favor of plaintiff in the case of George Knaell v. Pittsburgh, Mars & Butler Railway Company.

Before Henderson, Trexler, Keller, Linn and Gawthrop, JJ.

Reversed.

Trespass to recover damages for personal injuries. Before Reiber, P. J.

The facts are stated in the opinion of the Superior Court.

Verdict for plaintiff in the sum of $2,000 and judgment thereon. Defendant appealed.

*Error assigned*was, among others, refusal of defendant’s motion for judgment non obstante veredicto.

*J. Campbell Brandon,*of *Brandon & Brandon,*for appellant.

The plaintiff was guilty of contributory negligence : Miller N. B. S. Co. v. Phila. Rapid Transit Co., 62 Pa. Superior Ct. 568, 570; Kane v. Phila. Rapid Transit Co., 67 Pa. Superior Ct. 80; Bready v. Phila. Rapid Transit Co., 68 Pa. Superior Ct. 298, 301-302; McClelland v. Pitts. Ry. Co., 216 Pa. 593.

*James E. Marshall,*and with him *Thomas W. Watson,*for appellee.

The case was for the jury: Armstrong v. Buffalo, Rochester & Pittsburgh Ry. Co., 81 Pa. Superior Ct. 337; Penna. R. R. Co. v. Ogier, 35 Pa. 60; Breun*357niger v. Penna. R. R. Co., 9 Pa. Superior Ct. 461; Stover v. Penna. R. R. Co., 195 Pa. 616; Doyle v. Chester Traction Co., 214 Pa. 382; Knowlan v. Shipley-Massingham Co., 266 Pa. 117; Johnson v. West Chester & Phila. R. R. Co., 70 Pa. 357.

July 2, 1924:

Opinion by

Trexler, J.,

Plaintiff driving a Ford touring car at a rate of speed of about 5 miles an hour was about to cross defendant’s interurban trolley road at a grade crossing on a public highway near the Borough of Mars. When he was within 10 feet of the crossing, the front of his car being about 4 or 5 feet from it, he saw the trolley car approaching on a down grade about 125 feet away and knowing he had not time to cross he attempted to stop his machine, but failed to avoid a collision. He states that the momentum of the automobile carried it over the' first rail. The plaintiff was thoroughly familiar with the premises. He knew that his view would be obstructed, nevertheless he kept on with his automobile until he got to a place where he could see, but a place in which he could not escape danger if it should appear. He was going into a situation of known danger without having his car under control. To look when it was impossible to check the speed of the car so as to keep from entering the tracks was useless. It was plaintiff’s duty, knowing the locality, when he came to the place where he could see to have his car so that he could arrest its progress before it reached the tracks. This is in accordance with our decisions: Miller North Broad Storage Company v. Philadelphia Rapid Transit Company, 62 Pa. Superior Ct. 568; Kane v. Philadelphia Rapid Transit Co., 67 Pa. Superior Ct. 80. We think the plaintiff was guilty of contributory negligence. The third assignment of error, the one to the refusal of the court to give binding instructions is sustained.

The judgment is reversed and judgment is now entered in favor of the defendant.