delivered the opinion of the court, March 3d 1879.
This is a close case, lying fast by the dividing line between questions of law and of fact. Testimony, tending to prove that the deceased, August Werner, lost his life by the negligence and improper conduct of the employees of the railroad company, was introduced, and, without objection, submitted to the jury, who, by their verdict, have settled that question in favor of the plaintiffs below. It must therefore be assumed as a fact that the company was guilty of negligence. In the court below the defence was *64rested mainly on the ground of concurring negligence on the part of the deceased; and, as to that, the contention now is that under the testimony it was a question of law for the court, and not one of fact for the jury. It was not raised, as is sometimes done, on a motion for a nonsuit, grounded solely on the plaintiffs’ testimony, but by a request for binding instructions after the testimony on both sides was closed. The five points submitted by the learned counsel for the company are each based on the assumption that acts of the deceased, constituting contributory negligence, were established beyond reasonable doubt, and the court was asked to say, as matter of law, that the plaintiffs could not recover.
The learned judge who presided at the trial, after fairly presenting the questions of fact raised by the testimony, submitted them .to the jury in a very clear and able charge, in which he affirmed the defendants’ points, provided the jury found “the facts as therein assumed,” but declined to affirm them as matters of law. In the course of his charge, after calling the attention of the jury to the testimony and stating in the most pointed and emphatic terms the duty of the deceased, he proceeded to say, “ If, therefore, you are satisfied under the testimony, that the deceased did not perform his full legal duty of stopping, looking and listening before he crossed; but, if you think, as described by one of the witnesses for the defence, the moment the caboose car of the coal train got beyond his crossing, he darted across without looking up or down the road, that was negligence on his part, and however unfortunate the result the railroad company cannot be made to pay for it.”
There can be no question as to the fairness of the charge, and its correctness also, unless it be in the refusal to rule the case as a question of law and thus take it from the jury.
When the facts are admitted, or so clearly and conclusively proved as to admit of no reasonable doubt, it is the duty of the court to declare the law applicable to them; but, when material facts are disputed, or inferences of fact are to be drawn from the testimony, it is the exclusive province of the jury to determine what they are. The line of demarcation, in this respect, between the duty of the court and that of the jury should be carefully guarded. While, on the one hand, the court should not permit the jury to disregard or evade its instructions as to matters of law, it should be equally careful not to invade the province of the jury and take upon itself the determination of facts about which there is 'any dispute.
The first and fifth points of the defendant, above referred to, assume that Werner neglected to take the necessary precautions “to stop, look and listen for approaching trains,” before attempting to cross the track; and therefore the plaintiffs could not recover. This was asking the court to do more than the evidence warranted. The undisputed testimony was that he did stop, when he came to *65the railroad; indeed, he was compelled to do so by the passing coal train. When first seen by the brakeman, who was on the caboose attached to the train, he was standing in the centre of Erie avenue, a few feet from the eastern side of the track, and there he remained until the coal train passed by. To conclude that he did not listen while standing there, would require a strained and unnatural inference. The presumption would rather be that he did listen as well as look. The love of life and the instinct of self-preservation are too strong to justify the inference that he was heedless all the while, and failed to exercise ordinary care. The common-law presumption is that every one does his duty until the contrary is proved, and none of the witnesses undertake to say that he did not both look and listen while waiting for the coal train to pass. It is undoubtedly true that when the plaintiff’s own evidence discloses contributory negligence, there can be no recovery; but, if it does not, the burthen is on the defendant to disprove care, and, in such case, the question of negligence is for the jury: Pennsylvania Railroad Co. v. Weber, 26 P. F. Smith 157. The vice of these points was that they assumed more than was clearly proved.
In the second point it is asserted that “ in passing the rear of the coal train where he could only see in one direction,” he continued “in his course without any attempt at examination.” ■ In view of all the circumstances as they are presented in the testimony, it could not be safely assumed as an undisputed fact that the deceased did not endeavor to see that the way was clear. The witness already referred to, after describing the situation and Werner’s movements, says: “I would have done the same thing.” Another brakeman, who narrowly escaped being run over by the locomotive, says: “ Werner was looking on the other side when I first saw him, after he passed the caboose. I can’t tell what way-he was looking, when he was crossing. He just looked across and started. He must have looked up the track, for he started or drew back, but did not get away quick enough.”
The third point takes it for granted, not only “ that the deceased was warned not to cross the tracks, as an engine was then coming,” but that he heard the warning and heeded it not. There is nothing in the testimony that would have justified the court in assuming these as uncontroverted facts. One of the witnesses testified that he hallooed, “Look out!” This was done, as the witness says, to warn him of the approaching locomotive; but it would be difficult to say, from the testimony, whether he heard the warning or not, or if he did what he supposed it meant. Possibly, if Werner had survived, he would say that he heard the warning, and thought it had reference to the coal train, and that he was thus induced to hasten across the track so as to escape danger. This would be a more reasonable inference than that he heard the warning that a *66locomotive was coming, disregarded it and pressed on to his own destruction.
The fourth point assumes that the undisputed evidence was that a whistle was blown before the engine reached the Erie avenue crossing; that Werner heard it, but did not regard it. This also would have been an unwarranted assumption of fact on the part of the court. It may well be that the testimony would justify such an inference, but it could not be regarded by the court as an undisputed fact.
The question is not whether the testimony did not point strongly to the conclusion that the deceased was chargeable with contributory negligence in one or more of the particulars stated in the points, but whether there was such conclusive evidence of the facts as would warrant the court in regarding them as clearly established, and declaring, as matter of law, that the deceased was guilty of contributory negligence, and therefore his widow and children could not recover. We are not prepared to say that there were such undisputed facts.
Viewing the question in the light of all the circumstances as they were disclosed by the testimony, it is by no means clear that there was error in refusing an unqualified affirmance of defendant’s points. On the contrary, we think that if they had been so affirmed, the learned judge would have invaded the province of the jury and taken upon.himself the determination of facts which properly belonged to them. The testimony revealed, as far as was possible, the position and movements of the deceased and the circumstances by which he was surrounded at the time he met his death; and it was for them to find the facts, draw such inferences as were warranted, and, under the direction of the court as to the law, say whether he was chargeable with negligence which contributed to the accident. If the verdict was contrary to the evidence, the only relief was in granting a new trial. This was refused and is not the subject of review here.
Considering the charge as a whole, we think there is no just ground of objection to the portions covered by the first and second assignments of error. When read in their connection with and relation to other parts of the charge they are free from error.
Judgment affirmed.