delivered tbe opinion of tbe Court; Ckookett, J; Bhodes, C. J. and Wallaoe, J. concurring.
Tbe plaintiff’s intestate was run over and killed, on Powell street, in San Francisco, by tbe car of defendant, and this • action is brought to recover damages.
It was claimed by tbe plaintiff that defendant’s railroad was on tbe extreme east side of tbe street, and more than thirteen feet from tbe middle, while tbe statute granting tbe right to lay its track, requires it to be laid in tbe middle of *452tbe street; tbat the defendant had caused to be piled there a lot of railroad ties and sleepers which were within eighteen inches of the track and between the track and the sidewalk. The car was being driven along at great speed — at the rate of eight or twelve miles per hour — it being a down grade, and the horses going upon a full run. The boy found himself, suddenly, immediately before the car, some fifteen or twenty feet from the horses, and to avoid being run over, run against this pile of timber; was turned back by it and run over. It is claimed that the defendant had no lawful right to lay its track in that place; that the car was unlawfully driven along that portion of Powell street; that had the track been in the middle of the street the injury would not have occurred.
Before the trial commenced the defendant moved to strike out an allegation of the complaint, which tendered an issue on this point, on the ground that it was irrelevant and immaterial. The motion was granted and the allegation stricken out.
In answer to the charge of error in this ruling the defend-dant quotes several private statutes, and states some facts which we fail to find in the record. These matters, however, if true, would tend to show that the defendant’s-road was as near the middle of the street as was practicable, but they do not establish, or tend to establish, that an allegation of that kind in the complaint was irrelevant or immaterial. These matters, when proven, may be admitted to be conclusive upon the defendant’s right, but the very fact that their recital is necessary to show that the allegation would not have availed the plaintiff, is an argument in favor of the right of plaintiff to tender an issue upon that point. It seems to be admitted in the argument that if the defendant was, in fact, unlawfully driving its car along Powell street at the time of the accident; it would have a material bearing upon this case, and we think the plaintiff had a right to tender an issue upon that question.
We do not see what bearing upon the question the suggestion can possibly have that the defendant was a corpora*453tion, claiming corporate powers in good faith, and doing business as sucb incorporation. It may be admitted tbat it bas a right to exercise corporate powers just as it is exercising them, but this would not prove their possession of a franchise to run a car over a particular street or part of a street. It is not a question as to their corporate capacity, but as to their right to use a street of the city in a particular way.
We think the evidence, offered to show that it was the custom of the inhabitants of that part of the city to allow boys of the age of the deceased to play in the streets, was • properly excluded. If proven, this would not tend to show that such use of the street is lawful.
The Court also correctly excluded the evidence offered to prove that the cars of the Omnibus Bailroad Company were driven down the same grade at a less speed than the cars of the defendant. The speed adopted by the other company using the same track is no criterion by which to judge the propriety of the speed with which defendant’s cars were driven.
We think the Court erred in granting the defendant’s motion for a nonsuit, which was made on the ground that the negligence of the deceased contributed to the accident. The general doctrine of contributory negligence in cases of this character was fully discussed in the case of Needham v. San Francisco and San Jose R. R. Co. 73 (Cal. 410); and we are entirely satisfied with the conclusions there arrived at, and we do not consider it necessary to enter upon the discussion here.
The fact of negligence is generally an inference from many facts and circumstances, all of which it is the province of the jury to find. It can very seldom happen that the question is so clear from doubt that the Court can undertake to say, as matter of law, that the jury could not fairly and honestly find for the plaintiff. It is not the duty of the Court, in such cases any more than in any other, to usurp the province of the jury and pass upon the facts. And the nonsuit should only be granted in such cases where the evidence of the misconduct on the part of the injured party *454is so clear aud irresistible as to put tbe case on a par with, those eases where a nonsuit is granted for a failure to introduce evidence sufficient to go to the jury upon some point essential to the plaintiff’s case. The fact must be so clear that, looking upon the plaintiff’s case in the most favorable light, and -giving him the benefit of all controverted questions, the Court can see that a verdict in his favor must necessarily be set aside.
The evidence plainly shows that the defendant’s car was being driven in the most reckless and culpable manner, at the time of the accident, and we are not satisfied that, notwithstanding the negligence of the deceased, the injury might not have been avoided by the exercise of proper diligence and prudence on the part of the defendant. And, besides> it may not have been negligence on the part of the deceased to attempt to cross the track at the distance before the horses testified to, had they been driven at a proper speed, and under a proper control of the driver.
The question whether there was negligence on the part of the parents of the child in allowing him to be in the streets unattended, ought to have been submitted to the jury. This depended not only upon his age, but his intelligence and physical ability, and we cannot say, as matter of law, there was negligence in this particular case. If, however, it were admitted to be negligence on the part of the parents to allow the deceased to be alone in the streets, the defendant would, nevertheless, be liable, if the injury occurred through the gross negligence of its employee, and that, which would be but ordinary negligence in reference to a grown person may be gross negligence as respects a child.
The drivers of street cars, through a densely populated city, ought always to have their teams under their immediate and absolute control,, and are bound to drive in such a manner, if possible, as to injure no one. They may generally rely upon the instinct of self-preservation to induce every one to endeavor to avoid injury, and when, from infancy or other apparent cause, a person liable to bo injured cannot be expected to exercise the usual degree of *455prudence in this respect, a greater degree of caution is necessary on the part of the driver. Thus, if a grown person were seen on the track, apparently in the possession of all his faculties, there being no difficulty in getting out of the way, the driver might reasonably expect him to do so, and could drive on in full confidence that no injury would ensue ; but if an infant of tender age were discovered in the way of the car — no matter how culpable its natural guardians may be in allowing it to be there, it would be absurd to say that the defendant could drive on, relying upon supposed legal rights, and expect the same degree of prudence or the same ability to get out of the way from it as from a grown person.
There is nothing whatever in the point that the deceased was wrongfully in the street at the time of the accident, because he went there to play. If he had the necessary discretion and physical ability to be allowed to be in the streets at all, unattended, the purpose for which he went there is entirely immaterial. The question is not why he was there, but, so far as his conduct is concerned, being there, whether he was guilty of negligence which directly contributed to the injury.
The streets were made for travelers, it is true, but the fact that a person is there for other purposes does not justify a trespass committed upon his person. He may be there for the purpose of committing a crime; but if this were so, it would be entirely immaterial, so he was guilty of no act which would justify or excuse the trespass committed upon his person. If the deceased was playing in the street at the time of the injury, he may thereby have increased the danger or the difficulty of the defendant to avoid the injury. This would be material, but still the inquiry would be, what happened and what was done in the street, and not for what reason the deceased was there.
The cases cited upon this point are where the municipality has been sued for injuries which occurred because the streets were not kept in repair, and the defense has been that they .were being used in some way or for some purpose *456for wbicb they were not designed, and in respect to which, there was no undertaking of their fitness on the part of the public; as by leaning against the railing of a bridge. Evidently this is upon a different principle. In some States the public are made liable for injuries which occur on account of defects in the highway, and the Courts confine the liability of the public in such cases within the narrowest possible limits, and, therefore, limit the right of action to those who are using the road for purposes of travel, there being no duty on the part of the public to provide roads for other purposes.
Judgment reversed and cause remanded for further proceedings, in accordance with this opinion.