The opinion of the court was delivered by: KALODNER
This action to recover for personal injuries and property damage arises out of a grade crossing collision between defendant's train, alleged to have been negligently operated, and plaintiff's automobile, which was operated by him at the time of the accident. Defendant denies the charge of negligence and asserts as an additional defense the negligence of the plaintiff. The broad questions for determination are at once evident.
The cause having come on to be heard by the court without a jury, on the basis of the pleadings and additional evidence, I make the following findings of fact:
1. The accident on which plaintiff's claim is based occurred at the intersection of Oregon Avenue and Vandalia Street, in the City of Philadelphia, on September 25, 1943 at about 10:30 P.M.
2. The night was dark, but clear and dry, and there was an electric street light at the southeast corner of the intersection.
3. At the time of the accident there were no obstructions north of Oregon Avenue at Vandalia Street or at any point within one hundred and fifty feet east of the intersection.
4. At Oregon Avenue there are two sets of tracks with a space of eight feet between each track. North of Oregon Avenue there is an unobstructed view of approximately one city block.
5. Immediately prior to and at the time of the accident defendant's engine, pulling twenty-eight loaded freight cars, was southbound on Vandalia Street on the west track, and at the time of the accident was travelling at a speed of about six miles per hour, being operated by its servants, agents or employees, in the course of their employment.
6. The automatic engine bell was turned on at a point approximately ten carlengths, or 400 feet, north of Oregon Avenue and continued to ring until after the collision occurred.
7. The engine's headlight was on bright at a point approximately ten carlengths, or 400 feet, north of Oregon Avenue and continued to burn bright until after the collision occurred.
8. The engineer blew the whistle for the crossing four times: two long blasts, one short blast, and one long blast; the first at a point eight carlengths, or 320 feet, north of the intersection and the last one as the engine entered the crossing.
9. Immediately prior to and at the time of the accident plaintiff's automobile was westbound on Oregon Avenue about four feet from the north curb line thereof.
10. Immediately prior to the time of the accident plaintiff was travelling at a very slow rate of speed.
11. At no time was any flagman or signalman situated on Oregon Avenue at or near the tracks to signal the approach of the engine.
12. Plaintiff did not stop his automobile before entering on the tracks of defendant, nor ...