Opinion by
Rice, P. J.,
Negligence is always a question for the jury whenever there is a conflict of testimony, or for any cause there is a reasonable doubt as to the facts or as to the inferences to be drawn from them. If the motorman of the defendant company saw, or, in the exercise of due care, ought to have seen the plaintiff on the track and making ineffectual efforts to get off, and by slowing up his car could have avoided the collision, and failed to stop or slow up his car; or if, having regard to the narrowness of the traveled portion of the highway, the amount of travel [90]*90thereon, the construction of the track, and the form of the rail, the difficulty of getting off the track, the grade, and all the other circumstances, the car was being run at dangerous speed and in consequence the motorman was unable to check it sufficiently to prevent collision with one, who, without negligence, happened to be on the track, and if a collision could have been prevented if the car had been running at proper speed, then the question, whether the motorman exercised care according to the circumstances, was for the jury; it certainly was not for the court to declare that he did exercise such care. This is not a merely supposititious case, but the question as above stated is fairly raised by testimony in the case.
As was said in Gilmore v. Railway Co., 158 Pa. 31, “Street railway companies have not an exclusive right to the highways upon which they are permitted to run their cars, or even to the use of their own tracks. The public have a right to use these tracks in common with the railway companies, and therefore, while the rights of the latter are in some respects superior to those of the former, as was said in Ehrisman v. East Harrisburg City Passenger Railway Co., 150 Pa. 180, it is not negligence per se for a citizen to be anywhere upon such tracks. So long as the right of a common user of the tracks exists in the public, it is the duty of passenger railway companies to exercise such watchful care as will prevent accidents or injuries to persons, who, without negligence upon their own part, may not at the moment be able to get out of the way of a passing car. The degree of care must necessarily vary with the circumstances, and therefore no unbending rule can be laid down.” This statement of the law lias been recognized and applied in many cases, amongst which may be mentioned Gibbons v. Railway Co., 155 Pa. 279; Kestner v. Traction Co., 158 Pa. 422; Lott v. Railroad, 159 Pa. 471; Thatcher v. Traction Co., 166 Pa. 66, and our own case of Smith v. Phila. Traction Co., 3 Pa. Superior Ct. 129. It is applicable here; and, as was said in Thatcher v. Traction Co., supra: “ It is not our duty now, nor was it that of the court below, to pass on the credibility of plaintiff’s witnesses as to the rate of speed, and the absence of effort to stop the car when the danger was manifest. That was for the jury.” It would have been error to instruct the jury that, there was no evidence of negligence on the part of the defendant.
[91]*91Upon the question of the plaintiff’s contributory negligence it will be necessary to refer briefly to some of the more important points in his testimony. He claims that while driving along the highway he noticed that a vinegar jug in the bottom of the wagon near his feet had fallen over; that he stooped to reach it, and that whilst doing so, holding the reins in his left hand and righting the vinegar jug with his right hand, his horse swerved from the driveway and he suddenly found himself on the track, with the wheels between the rails ; that he immediately looked back and saw the car approaching at a high speed —his witness says at the rate of ten miles an hour; — that he then made an attempt to get back on the driveway; and that, although he was successful in getting the front wheel out over the rail and upon the plank running alongside, yet by reason of the fact that the rails were T rails and that the space between them was not filled, he did not get the left wheel out; that whilst making this attempt, urging his horse and doing all he could to escape from the danger he was in, the car collided with his wagon. He alleges that no warning of the approach of the car was given, and that the motorman made no proper effort to stop the car or to check its speed. The defendant’s witnesses give a somewhat different version of the affair, .but it is not necessary to go into that, for it is not our province to find the facts, but only to examine and ascertain whether there is competent evidence from which a jury might find the facts necessary to sustain their verdict. Assuming the facts to be as above stated, it would have been usurpation of the functions of the jury for the court to declare that the only legitimate inference was that the plaintiff was negligent. It is to be remembered that the railway track was upon the highway; therefore, the plaintiff was not a trespasser. The traveled road was less than ten feet wide and was brought on a level with the top of the rails by planks laid alongside. A horse swerving but little to one side might easily bring the two wheels of the vehicle inside the rail. The very danger of this made it the' duty of the plaintiff to be watchful to keep his horse off the track if he had reason to apprehend that a car was approaching and was near at hand. But whether he had reason to apprehend that a car was approaching, and was so near, or was coming at such speed, as to make it unsafe to release his attention from his horse in the attempt [92]*92to save some article in his wagon from injury were questions of fact and not of law, and were submitted to the jury in a very clear and impartial manner. It was for the jury to say not only whether the facts were as alleged by the plaintiff and his witness, but also whether or not he failed to exercise the care that would be expected of an ordinarily prudent man under those circumstances. If the plaintiff drove upon the track when the car was as near as some of the defendant’s witnesses testify, it would be difficult to explain Iris act upon any theory but that of negligence. But the facts are not undisputed. True, the plaintiff says that when he -found that the wheels of his wagon were over the rail he looked back and that at that time the car was distant twenty-five yards or thereabouts. But his witness testifies that when he drove on the track the car was in the neighborhood of seventy-five yards away. It is to be remembered further, that the plaintiff did not intentionally drive' upon the track, and that if the car was twenty-five yards away when he found himself upon the track and looked back, it must have been very much farther away when he stooped over to look after his goods, if as the plaintiff’s witness says, it was going at the rate of ten miles an hour. Furthermore, he testifies that when he came to the narrow place, which was but a very short time before the accident, he looked back, and, although he could see a distance of at least a quarter of a mile, he could see no car.
But it may be said that the plaintiff cannot allege that he was accidentally upon the track, because his being there was attributable to his neglect of duty as a driver in stooping over to set right the vinegar bottle in the bottom of his wagon and remaining in that position long enough to permit his horse to get upon the track. The fact is undisputed, but whether it was a negligent act or not depended upon the circumstances, some of which are in dispute. It was not negligence per se like the failure to stop, look and listen before crossing a railroad track.
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Opinion by
Rice, P. J.,
Negligence is always a question for the jury whenever there is a conflict of testimony, or for any cause there is a reasonable doubt as to the facts or as to the inferences to be drawn from them. If the motorman of the defendant company saw, or, in the exercise of due care, ought to have seen the plaintiff on the track and making ineffectual efforts to get off, and by slowing up his car could have avoided the collision, and failed to stop or slow up his car; or if, having regard to the narrowness of the traveled portion of the highway, the amount of travel [90]*90thereon, the construction of the track, and the form of the rail, the difficulty of getting off the track, the grade, and all the other circumstances, the car was being run at dangerous speed and in consequence the motorman was unable to check it sufficiently to prevent collision with one, who, without negligence, happened to be on the track, and if a collision could have been prevented if the car had been running at proper speed, then the question, whether the motorman exercised care according to the circumstances, was for the jury; it certainly was not for the court to declare that he did exercise such care. This is not a merely supposititious case, but the question as above stated is fairly raised by testimony in the case.
As was said in Gilmore v. Railway Co., 158 Pa. 31, “Street railway companies have not an exclusive right to the highways upon which they are permitted to run their cars, or even to the use of their own tracks. The public have a right to use these tracks in common with the railway companies, and therefore, while the rights of the latter are in some respects superior to those of the former, as was said in Ehrisman v. East Harrisburg City Passenger Railway Co., 150 Pa. 180, it is not negligence per se for a citizen to be anywhere upon such tracks. So long as the right of a common user of the tracks exists in the public, it is the duty of passenger railway companies to exercise such watchful care as will prevent accidents or injuries to persons, who, without negligence upon their own part, may not at the moment be able to get out of the way of a passing car. The degree of care must necessarily vary with the circumstances, and therefore no unbending rule can be laid down.” This statement of the law lias been recognized and applied in many cases, amongst which may be mentioned Gibbons v. Railway Co., 155 Pa. 279; Kestner v. Traction Co., 158 Pa. 422; Lott v. Railroad, 159 Pa. 471; Thatcher v. Traction Co., 166 Pa. 66, and our own case of Smith v. Phila. Traction Co., 3 Pa. Superior Ct. 129. It is applicable here; and, as was said in Thatcher v. Traction Co., supra: “ It is not our duty now, nor was it that of the court below, to pass on the credibility of plaintiff’s witnesses as to the rate of speed, and the absence of effort to stop the car when the danger was manifest. That was for the jury.” It would have been error to instruct the jury that, there was no evidence of negligence on the part of the defendant.
[91]*91Upon the question of the plaintiff’s contributory negligence it will be necessary to refer briefly to some of the more important points in his testimony. He claims that while driving along the highway he noticed that a vinegar jug in the bottom of the wagon near his feet had fallen over; that he stooped to reach it, and that whilst doing so, holding the reins in his left hand and righting the vinegar jug with his right hand, his horse swerved from the driveway and he suddenly found himself on the track, with the wheels between the rails ; that he immediately looked back and saw the car approaching at a high speed —his witness says at the rate of ten miles an hour; — that he then made an attempt to get back on the driveway; and that, although he was successful in getting the front wheel out over the rail and upon the plank running alongside, yet by reason of the fact that the rails were T rails and that the space between them was not filled, he did not get the left wheel out; that whilst making this attempt, urging his horse and doing all he could to escape from the danger he was in, the car collided with his wagon. He alleges that no warning of the approach of the car was given, and that the motorman made no proper effort to stop the car or to check its speed. The defendant’s witnesses give a somewhat different version of the affair, .but it is not necessary to go into that, for it is not our province to find the facts, but only to examine and ascertain whether there is competent evidence from which a jury might find the facts necessary to sustain their verdict. Assuming the facts to be as above stated, it would have been usurpation of the functions of the jury for the court to declare that the only legitimate inference was that the plaintiff was negligent. It is to be remembered that the railway track was upon the highway; therefore, the plaintiff was not a trespasser. The traveled road was less than ten feet wide and was brought on a level with the top of the rails by planks laid alongside. A horse swerving but little to one side might easily bring the two wheels of the vehicle inside the rail. The very danger of this made it the' duty of the plaintiff to be watchful to keep his horse off the track if he had reason to apprehend that a car was approaching and was near at hand. But whether he had reason to apprehend that a car was approaching, and was so near, or was coming at such speed, as to make it unsafe to release his attention from his horse in the attempt [92]*92to save some article in his wagon from injury were questions of fact and not of law, and were submitted to the jury in a very clear and impartial manner. It was for the jury to say not only whether the facts were as alleged by the plaintiff and his witness, but also whether or not he failed to exercise the care that would be expected of an ordinarily prudent man under those circumstances. If the plaintiff drove upon the track when the car was as near as some of the defendant’s witnesses testify, it would be difficult to explain Iris act upon any theory but that of negligence. But the facts are not undisputed. True, the plaintiff says that when he -found that the wheels of his wagon were over the rail he looked back and that at that time the car was distant twenty-five yards or thereabouts. But his witness testifies that when he drove on the track the car was in the neighborhood of seventy-five yards away. It is to be remembered further, that the plaintiff did not intentionally drive' upon the track, and that if the car was twenty-five yards away when he found himself upon the track and looked back, it must have been very much farther away when he stooped over to look after his goods, if as the plaintiff’s witness says, it was going at the rate of ten miles an hour. Furthermore, he testifies that when he came to the narrow place, which was but a very short time before the accident, he looked back, and, although he could see a distance of at least a quarter of a mile, he could see no car.
But it may be said that the plaintiff cannot allege that he was accidentally upon the track, because his being there was attributable to his neglect of duty as a driver in stooping over to set right the vinegar bottle in the bottom of his wagon and remaining in that position long enough to permit his horse to get upon the track. The fact is undisputed, but whether it was a negligent act or not depended upon the circumstances, some of which are in dispute. It was not negligence per se like the failure to stop, look and listen before crossing a railroad track. The case, therefore, is a proper one for the application of the well-settled principle that when the measure of duty is ordinary and reasonable care, and when the degree of care varies according to the circumstances, the question of negligence is always for the jury: D., L. & W. R. R. Co. v. Jones, 128 Pa. 308; Gates v. Penna. R. R. Co., 154 Pa. 566. Without discussing the defendant’s second, third, fourth, and seventh [93]*93points further, we conclude, for the reasons above suggested, that, as they requested the court to take the case from the jury upon the ground of the plaintiff’s contributory negligence, they were properly refused. The qualification of the defendant’s fifth point, taken in connection with and explained by, the general charge was entirely proper. Before leaving this branch of the case, we remark that the assignment of error in which the answers to the several points were included violates Rule XV. and might have been disregarded. We have, however, considered it upon its merits, and conclude that it cannot be sustained.
The affirmance of the plaintiff’s first point as qualified in the answer was an instruction that if the car which struck the plaintiff’s wagon was being run at greater speed than allowed by the ordinance of the borough, and if the restriction imposed by the ordinance upon the rate of speed was a reasonable one, it was prima facie evidence of negligence on the part of the defendant, and the plaintiff was entitled to recover. This was manifestly erroneous and inconsistent with other portions of the charge and the answers to other points, because it took from the consideration of the jury the question of the plaintiff’s contributory negligence, if they found the defendant negligent in the particular specified. Was it harmless error? We are not sure that it was. The jury may have got the impression that while, generally, the plaintiff’s contributory negligence would prevent recovery, yet if the ordinance was reasonable and was violated by the defendant, then in that particular instance the plaintiff would be entitled to recover without regard to his own negligence. We are sure that the learned judge did not intend to convey that impression, but we are not sure that the jury did not receive and act upon it. Obscure and equivocal expressions, which, severed from the context, would be erroneous, have often been held to be harmless when construed in the light of other instructions and the charge taken as a whole: Knights of Pythias v. Leadbeter, 2 Pa. Superior Ct. 461. An obscure answer to a point may be aided in this manner, but not one that is palpably wrong: Murray v. Com. 79 Pa. 311; Rice v. Olin, 79 Pa. 391. In Steinbrunner v. Railway Co., 146 Pa. 504, Chief Justice PAXSON said of a portion of the charge assigned for error: “ It may be the learned judge used this language inadvertently. [94]*94This is probable from the fact that it is inconsistent with the portion of Ins charge which immediately preceded it. Bnt as it stands, it appears to be an erroneous statement of the evidence upon a pivotal fact in the case. We cannot say what influence it had with the jury.” The assignment was sustained. In Gearing v. Lacher, 146 Pa. 397, Mr. Justice Mitchell, after quoting the instruction complained of, said: “ This was so plainly erroneous, and so contradictory to what the judge had told the jury just before, that we are constrained to believe that there is some omission in the report which alters the whole meaning and application of the passage. ... It is probable that the learned judge was referring to the conflict of evidence in regard to the two recognizances, and that some error or omission in the report has confused the sense of his language, but as we find it on the record it was patent error, and the assignment in regard to it must be sustained.”
There is another view of this question, which, as the ease must go back for a retrial, is worthy of consideration. Edward Foley, the motorman, testifies that the plaintiff was but sixteen or twenty feet ahead of the car when he turned in on the track. Assuming for a moment that the plaintiff got upon the track by what may be regarded as a pure accident; that the ordinance restricting the speed of cars was a reasonable regulation; and that, at the time of the collision, the defendants car was moving at a greater speed, does it follow as a necessary legal conclusion that the speed of the car was the cause of the injury ? We think not. As Gibson, C. J., has said, “the defendant was answerable for the consequences of negligence, not for its abstract existence: ” Hart v. Allen, 2 W. 114. Its negligence in moving its car at too great speed was immaterial if it did not cause or contribute to the loss. Whether it did so or not was a question of fact. We do not question the admission of the ordinance in evidence. It is not denied that the jury had a right to take into consideration the fact that the car was moving at greater speed than the ordinance permitted: Pennsylvania Co. v. James, 81* Pa. 194; Lederman v. R. R. Co., 165 Pa. 118. But a municipal ordinance creates no new civil liability enforceable at common law in favor of one injured by another acting in disobedience of it: P. & R. R. Co. v. Ervin, 89 Pa. 71; P. & R. R. Co. v. Boyer, 97 Pa. 91. Hence it cannot be laid [95]*95down as a rule of law, that when a street railway car, being propelled at higher speed than a reasonable municipal ordinance permits, collides with another vehicle, the company is liable if the owner of the vehicle was not guilty of contributory negligence. Proof of the violation of the ordinance only goes to one of the elements of actionable negligence, and there still remains the question whether it was the cause of the injury. It was necessary for the plaintiff to establish by evidence circumstances from which it might fairly be inferred that there was reasonable probability that the accident resulted from the want of some precaution which the defendant might and ought to have resorted to: Daniel v. Metropolitan R. R. Co., L. R. 3 C. P. 216-222; L. R. 5 H. L. 45; Hayes v. Mich. Cent. R. R. Co., 111 U. S. 228. Whether or not the accident resulted from such a cause was, under the testimony in the present case, a question of fact for the jury. Upon both grounds, therefore, the plaintiff’s first point should have been answered in the negative.
The judgment is reversed and a venire facias de novo is awarded.