
    GAVIN v. BALTIMORE & O. R. CO.
    No. 8565.
    Circuit Court of Appeals, Third Circuit.
    Argued May 2, 1944.
    Decided May 31, 1944.
    Vincent M. Casey, of Pittsburgh, Pa. (Margiotti, Pilgüese & Casey, of Pittsburgh, Pa., on the brief), for appellant.
    J. Roy Dickie, of Pittsburgh, Pa. (Dickie, Robinson & McCamey, of Pittsburgh, Pa., on the brief), for appellee.
    Before JONES and GOODRICH, Circuit Judges, and GANEY, District Judge.
   PER CURIAM.

The defendant appeals from a judgment for the plaintiff entered upon a jury’s verdict in an action for personal injuries allegedly caused by the defendant’s negligence. The defendant moved the trial court for judgment n.o.v. on the ground that plaintiff was guilty of contributory negligence and, in the alternative, for a new trial. Both of those motions were denied. It is only the trial court’s denial of the motion for judgment n.o.v., however, which the appellant any longer urges as error.

Our examination of the record persuades us that under the weather conditions, obtaining at the time and place of the accident, which impeded both sight and hearing, and the positive testimony that the plaintiff had stopped, looked and listened at an appropriate place before entering upon the crossing of the defendant company’s track, made the question of the plaintiff’s contributory negligence a matter for the jury’s determination. Under the circumstances shown, it could not be said on the basis of any legal standard of care that the plaintiff must have or should have seen or heard the train that struck him, in time to avoid the accident.

The judgment of the District Court is affirmed.  