
    MILLER v. BALTIMORE & O. R. CO.
    No. 8435.
    Circuit Court of Appeals, Third Circuit.
    Argued Dec. 10, 1943.
    Decided Dec. 14, 1943.
    L. Pat. McGrath, of Pittsburgh, Pa., for appellant.
    Vincent M. Casey, of Pittsburgh, Pa. (Margiotti, Pugliese & Casey, of Pittsburgh, Pa., on the brief) for appellee.
    Before JONES, GOODRICH, and Mc-LAUGHLIN, Circuit Judges.
   PER CURIAM.

The evidence in this case conclusively shows that the plaintiff chose to remain seated in an automobile stalled upon the tracks of the defendant’s railroad late at night rather than seek a place of safety while there was yet time and that he continued so to remain in the dangerous position indicated even after ample warning of the approach of the train which inflicted the injuries for which he sued the defendant company. We think that, in these circumstances, the trial court was warranted in saying as a matter of law that the plaintiff was guilty of contributory negligence which barred a recovery and in entering judgment for the defendant n.o.v. accordingly.

The judgment of the District Court is therefore affirmed.  