Frank Rusynik was injured at a railway crossing when his truck was struck by a passenger train of the Pennsylvania R. R. At the point of the crossing, there are two tracks upon which the trains travel in opposite directions, he had stopped to allow a freight train to pass and before he had a clear view of the track by reason of the freight train, he drove upon the crossing and was struck. By his testimony he could not hear the crossing warning signal and smoke obscured his vision. The Summit Common Pleas directed a verdict on the ground that Rusynik was guilty of contributory negligence as a matter of law. The Court of Appeals reversed thq lower court and the Railroad Co. contends in the Supreme Court:

1. There is no conflict in the testimony and the plaintiff’s conduct cannot be explained, giving it the most favorable construction possible, except on the theory of his own negligence. Knowing that he was unable to see when he looked, had he looked east again before driving on the track, he could have stopped his truck instantly and avoided the collision.

2. The authorities in the state support the contention of the company. Railway v. Rohr, 114 OS. at 493; Railroad v. Lee, 111 OS. 391, etc.

Note: OA. opinion wlil be found in 5 Abs. 464.