Opinion by

When this case was here before (218 Pa. 34) we held, in reversing the judgment for the defendant n. o. v., that it could not have been taken from the jury. On the second trial the verdict was again for the plaintiff on what the learned and careful trial judge, in his opinion refusing judgment for the defendant, said was practically the same testimony as that *463given by the plaintiff on the first trial. If this is so, the appeal of the defendant is to be regarded as having been taken for the purpose of rearguing the case before us. The only difference which its counsel have attempted to point out in the case as presented on the second trial is that it now appears that the plaintiff could see a distance of 200 feet in the direction from which the train was coming and his own witnesses saw and heard it approaching. The corroborated testimony of the plaintiff is that it was dark and foggy, that there was no headlight on the engine and that no signal of its'approach was given by bell or whistle. He further testified that, though looking in each direction, he did not hear the engine, adding that, if it had been daylight, he would have séen it and the accident would not have happened. On his cross-examination, after again stating that, if it had been daylight, he could have seen, he said, when pressed to state how far he could see, or did see, “probably a couple of hundred feet;” and immediately followed this with the answer that he “ couldn’t say exactly.” Taking his testimony as a whole, the jury might fairly have understood him as not intending to say he could have seen the approaching train in the dark and foggy evening for a distance that would have enabled him to avoid it. His own witnesses do not testify that they saw it at any point east of the crossing on Washington avenue, and, though they may have heard it coming, the jury were not bound to find that he ought, therefore, to have heard it.

But for the answer to the first point submitted by the plaintiff, this judgment would have to be affirmed, because it has not been shown that the testimony of the plaintiff on the second trial was not practically the same as on the first. In the court’s answer to the point the jury were permitted to find that the defendant had been negligent in running its train at a high rate of speed. There was no evidence on the part of the plaintiff as to the rate of speed at which the train was moving, while the uncontradicted testimony of the engineer is that he was running at about seven miles an hour. The fourth assignment of error must be sustained.

Judgment reversed and venire facias de novo awarded.