
    Turner, Appellant, v. Phila. Rapid Transit Co.
    Argued October 16, 1930.
    Before Trexler, P. J., Keller, Linn, Gawthrop, Cunningham, Baldrige and Whit-more, JJ.
    
      
      Earle Hepburn, for appellant.
    
      John V. Lovitt, for appellee.
    January 30, 1931:
   Opinion by

Linn, J.,

Plaintiff appeals from judgment for defendant entered notwithstanding the verdict for plaintiff.

While walking across 29th Street on the north side of Thompson Street on a clear morning, plaintiff was struck by a south-bound street car. 29th Street has two sets of car tracks, one for north-bound, and the other for south-bound cars; the nearest rail of the north-bound track is 12 feet from the east curb of 29th Street; the distance from the western most rail to the western curb is also 12 feet; allowing for the two sets of tracks and the space between them makes the width of the cartway perhaps 38 or 40 feet. Plaintiff was crossing 29th Street from the east side, and was struck just as he was stepping over the last rail. When he reached the eastern curb, he looked and saw the car approaching south, about 375 feet away. He started across and, when in the dummy (the space between the north-bound and the south-bound tracks) he looked again and again saw the approaching car.

Judgment for defendant was entered on the ground that the approaching car was then so close to plaintiff that, to continue his crossing, was negligent. We shall therefore refer to the evidence describing the movement of the car. Plaintiff stated that 90 or 100 feet north of the house-line (he was crossing south of the house-line, “on the line pedestrians walk on”) a wire extended across the street and supported or kept in place, the trolley wire, and that, as the trolley passed under or came in contact with that supporting wire, it created a flash of light and that he thought that was * ‘ 90 feet from the building line; ” he also stated several times that when he looked from where he was in the dummy, the ear was 90 or 100 feet away. In response to a question suggesting it, he stated that the front of the trolley was closer to him by almost the length of the car than the point of the flash. There is no evidence of the exact length of the car, or of the distance between the front of the car and the point at which the trolley would be on the trolley wire in such circumstances. Though defendant might easily have proved the fact, the record is left with the “guess” of its motorman that the trolley car was 70 feet long; we think and the jury may also have thought that estimate quite excessive. The verdict of course establishes negligence in defendant; the car was not stopped until it moved 25 feet southward after striking plaintiff.

The more we study the evidence, the greater our doubt of the facts becomes; as contributory negligence is to be declared as matter of law only in clear cases, (Shaffer v. R. R. Co., 258 Pa. 288, 292), we may not on this record hold that the evidence established that plaintiff was testing a danger; that the testimony of another witness called by plaintiff showed obvious contributory negligence is not conclusive against the plaintiff, because he did not have the burden of proving that his conduct did not contribute to the accident: Ely v. Rwy. Co., 158 Pa. 233, 238; Milligan v. R. R. Co., 261 Pa. 344, 349. We think the learned trial judge was right in sending the case to the jury to find the facts, and that the court in banc was wrong in setting aside the verdict and in entering judgment for defendant ; see Murphy v. P. R. T. Co., 285 Pa. 399, 401. This plaintiff was not, as in Uhlig v. P. R. T. Co., 287 Pa. 586, cited by appellee, struck “the instant he set foot between the rails.”

Judgment reversed and record remitted with instructions to enter judgment on the verdict.  