Boyce, J.,
delivering the opinion of the court:
We have considered the question before the court as carefully and fully as we could in the limited time we have had; and our conclusion is that in view of the proximity of the several witnesses to the scene of the accident, we think the weight and value of their testimony, respecting any warning of the approach of the [238]*238car to the place of the accident should be left to the jury; and we decline to grant the nonsuit.
charging the jury:
Gentlemen of the jury:—This action was brought by Frangesco Riccio, the plaintiff, against the Peoples Railway Company, the defendant, to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant company, in operating its cars on Second Street, between Adams and Monroe streets, in this city, on the fourth day of May, A. D. 1911.
The plaintiff claims that on the day of the alleged accident,' he, with other employees of the Wilmington Gas Company was engaged in laying a gas pipe on the north side of the tracks of the defendant, in said Second Street near Adams Street; that he was at and immediately before the accident working at a tool box, about four feet away from the northerly rail of the defendant company; that he did not hear the approach of the car or any warning of its approach, either by bell or otherwise; and that he was negligently struck by a car of the defendant company moving in an easterly direction.
The defendant claims that its servants gave timely warning by bell of the approach of its car before and after crossing Adams Street; that the car was moving at a moderate and proper rate of speed; that its servants were in the exercise of due and proper caution; and that the injuries complained of were not caused by the negligence of the servants of the company, but were caused solely by the negligence of the plaintiff in coming in contact with the car without the fault or negligence of the servants of the company, and the defendant denies any and all liability for the alleged injuries.
[1] West Second Street is a public street of the City of Wilmington. The defendant company has a right to use said street for the operation of its railway thereon. And the plaintiff had the right to use the said street for the ordinary purposes of a public highway, including the business in which he was engaged, exercised in a reasonably careful and cautious manner. The right of each must be exercised with due regard to the right of the other, [239]*239and the right of each must be exercised in a reasonable and careful manner so as not unreasonably to abridge or interfere with the right of the other. Dungan v. Wil. City Ry. Co., 4 Penn. 461, 58 Atl. 868.
The defendant company of necessity, in the operation of its cars, could only use those parts of the street covered by their tracks within fixed limits, and for such purpose it had a right to use the said street at the place and time of the accident in common with other travelers and persons who saw fit to use it in any lawful manner.
[2, 3] There can be no recovery in this case unless the injury to the plaintiff was occasioned by the negligence of the defendant company. Negligence is the failure to use such care as a reasonably prudent person would exercise under similar circumstances.
[4] The mere fact of an accident by which an injury is sustained, if not within the control of the defendant, does not, in itself, raise a presumption of negligence. Queen Anne’s R. R. v. Reed, 5 Penn. 231, 59 Atl. 860, 119 Am. St. Rep. 301.
[5, 6] The burden of proving negligence, as attributable to the defendant, rests always upon the plaintiff. Negligence on the part of the motorman, if shown to the satisfaction of the jury, would be the negligence of the defendant.
Your inquiry in this case, under the evidence, is narrowed to the questions whether the injuries complained of were caused by the negligence of the servants in charge of the car of the defendant in not giving due and proper warning of the approach of the car by bell or otherwise, and whether the servants were at and immediately before the accident in the exercise of due and reasonable care and caution.
[7] It is the duty of the motorman in the management of his car to use reasonable diligence to prevent accident and his failure to do so would constitute negligence. The degree of diligence required depends upon the particular circumstances of each case.
[8, 9] The motorman of the car and the plaintiff each had the right to presume that the other would act as a reasonable [240]*240person under all the circumstances, until the contrary appeared. If there exists an increase of danger by reason of the particular circumstances, an increase of diligence commensurate with the danger is required of both.
[10] If the injury complained of was occasioned by the negligence of the plaintiff, or by the concurrent negligence of both the plaintiff and the servants of defendant, in that case the plaintiff would be guilty of contributory negligence and could not recover.
[11] A pedestrian who is in close proximity to the tracks of a street railway company upon which cars are running is bound to the exercise of a reasonable use of his senses to discover and avoid approaching cars, and if he fails to exercise such use of his senses and as a result thereof is injured, he is guilty of contributory negligence, and if such negligence was the proximate cause of his injury, he cannot recover.
[12] If the plaintiff moved from a position of safety to a position of danger near or upon the track of the railway on which the defendant’s car was running so suddenly as to make it impossible for defendant to stop its car before the collision, the defendant cannot be held liable for the resulting injury to plaintiff. Heinel v. Peoples Ry. Co., 6 Penn. 428, 67 Atl. 173.
[13] If the plaintiff was negligently standing near the defendant’s track, in a position of danger, at and before the time of the accident, yet if the motorman saw, or by the reasonable use of his senses could have seen, the plaintiff standing in a dangerous position, in time to stop the car and avoid the accident, it was his duty to do so, and if he failed to do so, the company would be liable. Heinel v. Railway Co., supra.
[14] If the jury should find that the servants of the defendant were not at the time of the accident in the exercise of reasonable care and caution, and that by reason thereof the plaintiff suddenly and without time or opportunity for reflection placed himself in a position of peril, and without fault or negligence on his part, operating at the time of the accident, he would be entitled to recover.
[241]
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Boyce, J.,
delivering the opinion of the court:
We have considered the question before the court as carefully and fully as we could in the limited time we have had; and our conclusion is that in view of the proximity of the several witnesses to the scene of the accident, we think the weight and value of their testimony, respecting any warning of the approach of the [238]*238car to the place of the accident should be left to the jury; and we decline to grant the nonsuit.
charging the jury:
Gentlemen of the jury:—This action was brought by Frangesco Riccio, the plaintiff, against the Peoples Railway Company, the defendant, to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant company, in operating its cars on Second Street, between Adams and Monroe streets, in this city, on the fourth day of May, A. D. 1911.
The plaintiff claims that on the day of the alleged accident,' he, with other employees of the Wilmington Gas Company was engaged in laying a gas pipe on the north side of the tracks of the defendant, in said Second Street near Adams Street; that he was at and immediately before the accident working at a tool box, about four feet away from the northerly rail of the defendant company; that he did not hear the approach of the car or any warning of its approach, either by bell or otherwise; and that he was negligently struck by a car of the defendant company moving in an easterly direction.
The defendant claims that its servants gave timely warning by bell of the approach of its car before and after crossing Adams Street; that the car was moving at a moderate and proper rate of speed; that its servants were in the exercise of due and proper caution; and that the injuries complained of were not caused by the negligence of the servants of the company, but were caused solely by the negligence of the plaintiff in coming in contact with the car without the fault or negligence of the servants of the company, and the defendant denies any and all liability for the alleged injuries.
[1] West Second Street is a public street of the City of Wilmington. The defendant company has a right to use said street for the operation of its railway thereon. And the plaintiff had the right to use the said street for the ordinary purposes of a public highway, including the business in which he was engaged, exercised in a reasonably careful and cautious manner. The right of each must be exercised with due regard to the right of the other, [239]*239and the right of each must be exercised in a reasonable and careful manner so as not unreasonably to abridge or interfere with the right of the other. Dungan v. Wil. City Ry. Co., 4 Penn. 461, 58 Atl. 868.
The defendant company of necessity, in the operation of its cars, could only use those parts of the street covered by their tracks within fixed limits, and for such purpose it had a right to use the said street at the place and time of the accident in common with other travelers and persons who saw fit to use it in any lawful manner.
[2, 3] There can be no recovery in this case unless the injury to the plaintiff was occasioned by the negligence of the defendant company. Negligence is the failure to use such care as a reasonably prudent person would exercise under similar circumstances.
[4] The mere fact of an accident by which an injury is sustained, if not within the control of the defendant, does not, in itself, raise a presumption of negligence. Queen Anne’s R. R. v. Reed, 5 Penn. 231, 59 Atl. 860, 119 Am. St. Rep. 301.
[5, 6] The burden of proving negligence, as attributable to the defendant, rests always upon the plaintiff. Negligence on the part of the motorman, if shown to the satisfaction of the jury, would be the negligence of the defendant.
Your inquiry in this case, under the evidence, is narrowed to the questions whether the injuries complained of were caused by the negligence of the servants in charge of the car of the defendant in not giving due and proper warning of the approach of the car by bell or otherwise, and whether the servants were at and immediately before the accident in the exercise of due and reasonable care and caution.
[7] It is the duty of the motorman in the management of his car to use reasonable diligence to prevent accident and his failure to do so would constitute negligence. The degree of diligence required depends upon the particular circumstances of each case.
[8, 9] The motorman of the car and the plaintiff each had the right to presume that the other would act as a reasonable [240]*240person under all the circumstances, until the contrary appeared. If there exists an increase of danger by reason of the particular circumstances, an increase of diligence commensurate with the danger is required of both.
[10] If the injury complained of was occasioned by the negligence of the plaintiff, or by the concurrent negligence of both the plaintiff and the servants of defendant, in that case the plaintiff would be guilty of contributory negligence and could not recover.
[11] A pedestrian who is in close proximity to the tracks of a street railway company upon which cars are running is bound to the exercise of a reasonable use of his senses to discover and avoid approaching cars, and if he fails to exercise such use of his senses and as a result thereof is injured, he is guilty of contributory negligence, and if such negligence was the proximate cause of his injury, he cannot recover.
[12] If the plaintiff moved from a position of safety to a position of danger near or upon the track of the railway on which the defendant’s car was running so suddenly as to make it impossible for defendant to stop its car before the collision, the defendant cannot be held liable for the resulting injury to plaintiff. Heinel v. Peoples Ry. Co., 6 Penn. 428, 67 Atl. 173.
[13] If the plaintiff was negligently standing near the defendant’s track, in a position of danger, at and before the time of the accident, yet if the motorman saw, or by the reasonable use of his senses could have seen, the plaintiff standing in a dangerous position, in time to stop the car and avoid the accident, it was his duty to do so, and if he failed to do so, the company would be liable. Heinel v. Railway Co., supra.
[14] If the jury should find that the servants of the defendant were not at the time of the accident in the exercise of reasonable care and caution, and that by reason thereof the plaintiff suddenly and without time or opportunity for reflection placed himself in a position of peril, and without fault or negligence on his part, operating at the time of the accident, he would be entitled to recover.
[241]*241[15] If the jury should believe from the evidence that the servants of the defendant approached the plaintiff with the car in the exercise of due care and caution, and after reaching the place where the plaintiff was working, or after a part of the car had passed him, the plaintiff either by stooping protruded a portion of his body against the side of the car and was thus struck and pushed or pulled down by the car, or that he stepped backward or otherwise moved so that he came in contact with the side of the car and was thus pushed down and injured, the defendant would not in such event be guilty of negligence and the plaintiff could not recover for his injuries received in consequence thereof.
You have the testimony of witnesses who say that they did hear a warning given of the approach of the car, and the testimony of witnesses who say that they did not hear a warning given.
[16] Positive testimony is entitled to greater weight than negative testimony, especially if the latter should be unaccompanied by facts and circumstances showing an attentive attitude of the witnesses respecting the matter to which they testified. Whether the motorman did or did not give warning of the approach of the car, you should determine from a preponderance of the evidence, under all the facts and circumstances before you respecting the question
[17, 18] Where the testimony is conflicting, it is the duty of the jury to reconcile it, if they can; if they cannot, they should give credit to the testimony of those witnesses who under all the circumstances appear to them to be most entitled to credit, taking into consideration the opportunities and advantages of each for seeing, observing and knowing the things of which they testify, as well as their apparent fairness, intelligence and any other element which may fairly test the truthfulness and accuracy of each. And your verdict should be for that party in whose favor is the preponderance or greater weight of the testimony. Hearn et al. v. Railway Co., 1 Boyce, 271, 280, 76 Atl. 629.
[19] If you should find for the plaintiff, your verdict should be fpr such sum as will reasonably compensate him for his injuries resulting from the accident, including therein his pain and suffer[242]*242ing in the past, and such as may come to him in the future from his injuries, also for loss of wages, expenses for medical attendance and other necessary expenses in seeking to cure himself or treating his injuries, and reasonable compensation for any permanent impairment of ability to earn a living in the future, if any is disclosed by the evidence. White v. Railway Co., 6 Penn. 105, 115, 63 Atl. 931.
• Verdict for plaintiff.