not see the plaintiff's car until just prior to the accident.
22. When the fireman observed that plaintiff was not going to stop at the crossing, he called out to the engineer and the engineer applied his brakes.
23. After the automobile was struck it came to rest on its roof about 50 to 125 feet west of the crossing on the northerly side of the track.
24. The engine of the train came to a stop about 886 feet from the westerly end of the crossing.
25. As a result of the accident, plaintiff's automobile was damaged and plaintiff suffered personal injuries.
26. The defendant's employees were not negligent in the operation of the train immediately prior to or at the time of the accident.
27. The accident was caused by plaintiff's failure to stop, look and listen before proceeding across the railroad track.
The plaintiff, in support of his claim, relies largely on the decision of Travis v. Pennsylvania Railroad Company, 377 Pa. 537, 105 A.2d 131, 133. The facts in the Travis case differ substantially from those in the present case. In the Travis case the driver of the automobile was killed in the accident and thus there was a legal presumption that he exercised due care. There also was no evidence as to what Travis did before entering the crossing. In the present case the plaintiff was not favored by the presumption, and, furthermore, there was evidence that the plaintiff never stopped at the crossing.
In the Travis case the Court in its opinion stated:
'Where a traveller stops, looks and listens before entering a grade crossing and, neither seeing nor hearing anything approaching on the tracks, proceeds and is thereafter struck by a train on a track beyond the first, the question of his contributory negligence is for the jury, and the incontrovertible physical facts rule has no application.'
This principle of law has no application in the present case because there is evidence that the plaintiff did not stop and, furthermore, the rule refers to a situation where there is more than a single track railroad. In the present case only a single track railroad is involved.
Conclusions of Law
1. This Court has jurisdiction of the parties and of the subject matter of the action.
2. The accident and resultant injuries suffered by the plaintiff were not the result of any negligence on the part of the defendant, or its employees, agents, and servants.
3. The accident and resultant injuries suffered by the plaintiff were caused solely by the negligence of the plaintiff.
4. Judgment should be entered for the defendant.
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