
    Mandell, Appellant, v. South Pittsburgh Water Company et al.
    Argued October 9, 1935.
    Before Frazer, C. J., Kephart, Schaffer, Maxey, Drew, Linn and Barnes, JJ.
    
      November 25, 1935:
    
      Benjamin L. Steinberg, with him Maurice A. Nernberg, for appellant.
    
      Frank K. Willmann, of Willmann, Burns & Sack, for appellee.
   Pee Curiam,

Plaintiff appeals from an order of the lower court refusing to take off a nonsuit. An examination of the testimony clearly sustains the court’s action. The following excerpt from the opinion of the learned trial judge, which is fully warranted by the evidence, concisely and correctly states the circumstances under which the accident happened, and clearly convicts plaintiff of contributory negligence:

“Plaintiff, on a clear night, on a practically straight stretch of highway thirty-six feet in width with á slight uniform down-grade, drove his automobile into a barrier of brick and dirt, from two to two and one-half feet high and about four feet wide, barricading an excavation approximately in the center of the highway. He said he did not see the obstruction until it ‘was about ten feet in front of me.’ With the exercise of ordinary care he could and should have seen it in ample time to have avoided running into it. He testified that his driving vision ahead was restricted to fifty feet, but, if this be true, it was due to improper headlights, and to nothing else. It could not be due to the slight bend in the highway or the slight down-grade. A witness called by plaintiff testified he drove past the same point shortly before plaintiff, saw the obstruction when he was fifty feet away from it, and was able to avoid it by turning slightly to the left. In our judgment, plaintiff was clearly guilty of contributory negligence, and the judgment of compulsory nonsuit was properly entered.”

Judgment affirmed.  