
    Loughrey, Appellant, v. Pennsylvania Railroad Company.
    
      Negligence—Railroads—Walking on track—Contributory negligence.
    
    In an action against a railroad company to recover damages for the death of plaintiff’s adult son, a nonsuit is properly entered where it appears that the deceased was killed while walking on one of the main tracks of the railroad, or so close to it as to be struck by the passing engine, and that although there were no sidewalks on the street where the tracks were laid, there was at each side of the main tracks room for a wagon to pass along.
    Argued Nov. 4, 1901.
    Appeal, No. 124, Oct. T., 1901, by plaintiffs, from order of C. P. No. 3, Allegheny Co., Aug. T., 1897, No. 150, refusing to take off nonsuit in case of Robert Loughrey and Fannie Loughrey, his Wife, v. The Pennsylvania Railroad Company, operating the Pittsburg, Virginia and Charleston Railroad.
    Before Mitchell, Fell, Browh, Mesteezat and Pottee, JJ.
    Affirmed.
    Trespass to recover damages for the death of plaintiff’s adult son. Before McClung, J.
    
      The court entered a compulsory nonsuit which it subsequently refused to take off, Me Clung, J., filing the following opinion:
    The nonsuit was entered in this case because plaintiff’s own testimony showed contributory negligence on the part of the victim of the accident. He was walking along a street occupied by a double track railway, on one of the main tracks, or so close to it as to be struck by the passing engine. It appears that there are no sidewalks on this street, but that there is at each side of these main tracks room for a wagon to pass along. Under these circumstances, without explanation of the necessity, we must conclude that it was negligence for this party to walk along the track, just as it would be negligence for foot passengers without necessity to leave a sidewalk and walk in the roadway.
    But it is said that at the point of the accident there was a siding which made a third track on the street.
    This might justify or excuse a walking on the siding, but not on the main track.
    There would seem even here to have been abundant room on the side of the street away from the siding for this person to walk, and he could have here walked in safety from engines on either the main track or siding.
    In any event nothing has been shown which absolves him from the charge of negligence in walking along the main track.
    And now, to wit: June 29, 1901, the motion to take off the nonsuit in this case is refused.
    
      Error assigned was the order of the court.
    
      F. O. McCHrr, with him John Marrón, for appellant.
    
      M. W. Aeheson, Jr., with him Thomas Patterson and James R. Sterrett, for appellee.
    January 6, 1902 :
   Per Curiam,

This judgment is affirmed on the opinion of the court below refusing to take off the nonsuit.  