delivered the opinion of the court, October 1st 1883.
A refusal to enter a compulsory non-suit is not assignable for error; that has been the uniform ruling of this court, since the passage of the Act of 11th March 1836, relating to the district courts, and of the general Act of 11th March 1875, w'hich has application to all the courts of common pleas, throughout the Commonwealth: Bavington v. Pittsburgh & Steubenville R. R. Co., 34 Penn. St. 358; Pownall v. Steele, 52 Penn. St. 446; U. S. Tel. Co. v. Wenger, 55 Penn. St. 262; Mobley v. Bruner, *47759 Penn. St. 481; Lehman v. Kellerman, 65 Penn. St. 489; Ballentine v. White, 77 Penn. St. 20. There is no provision, in either of these Acts, for removal of the record into this court, by writ of error for revision or review, except where a judgment of non-suit is entered, and a motiou to set that judgment aside has been refused. The remedy of the defendant was, by prayer to the court for instruction to the jury, upon the insufficiency of the plain tiff’s evidence ; he may always prepare the particular point, on which instruction is desired, and the court is bound to give it. The first assignment of error, therefore, does not properly present the question, sought to be raised under it, for the consideration of this court.
We are of opinion, however, that the second assignment is sustained. We cannot agree with the learned court, that it was a question for the jury “to consider, whether there was any necessity for the construction of the crossing,” at the place where the injury was received. The question of its necessity was for the municipality of the borough of Easton. Her corporate officers had the undoubted right, under the law to ordain and establish such sewers, pavements, gutters, &c., as they should deem necessary. They had the right to regulate these pavements, gutters, &c., and to fix their heights, grades, widths, slopes and the forms thereof. They had all needful jurisdiction over this subject matter. It was not a question, therefore, properly referable to the jury, whether the crossing or the gutters therein were necessary, either to the owners of the lots of ground fronting thereon, for the enjoyment thereof, or to the borough in general for purpose of drainage or otherwise ; the question of their necessity having been adjudicated in their construction by the corporation. If a person, by mere accident, and without fault of any one, were killed in a public street, it would be a most unwise and unjust rule of law, which could hold the municipality responsible for the injury, because in the judgment of the jury, trying the case, the street was not necessary'-for public travel,, and.should never have been opened for public use. The mere suggestion of the results, necessarily arising from such a rule, is a sufficient argument against its existence. But under our system whenever a power is conferred a corresponding duty is enjoined, and therefore whilst the law invests the municipality of Easton borough with the power to establish and construct pavements and gutters, the law, at the same time, requires that they shall be constructed in a reasonably safe and secure manner. It is not pretended that the gutter was out of repair, but that it was improperly constructed. The question for the jury then, was not as to the necessity for having such '-a crossing, with the gutters, but, assuming their necessity, were they constructed in such a defective, and negli*478gent manner as to have occasioned the injury ? Was there in the circumstances of the injury, any proof of negligence on the part of the borough of Easton, in the construction of this crossing ? There can be no inference of negligence from the mere fact of the injury; municipalities are not insurers, they are simply responsible for injuries arising from the negligence of the corporate officers, and the burden of proving that negligence is upon those who allege it. An injury may occur from purely accidental causes, in which no fault can be imputed to any one; we are all liable to the ordinary accidents of life. Was this such an accident or was it the result of the defendant’s negligence? Was this gutter constructed in the usual and ordinary way and after the plan generally adopted in the borough of Easton and elsewhere ? Was it reasonably safe and secure ? In passing upon the question of its safety it was proper for the jury to consider not only the method of its construction but the length of time it, with others of the same character, had been in use, the-number of people who had safely passed over it, whether or not any injuries had ever been similarly received, &c., &c. Was the injury suchas the corporate officers might and ought to have seen was likely to result from such a construction ? These were matters proper for the consideration of the jury but the necessity of the crossing was a matter which had previously been settled by another and a competent tribunal. We cannot say that this construction did no harm to the plaintiff in error.
There was evidence in the cause,' some of it inferential in its character, tending to show contributory negligence, this was for the jury. In the use of a public highway, in general, ordinary care is undoubtedly the rule: Erie v. Schwingle, 10 Harris 384; Lower Macungie v. Merkhoffer, 21 P. F. Smith 276; Pittston v. Hart, 8 Norris 389. Negligence is defined, however, as the absence of care, according to the circumstances. In this case, the plaintiff wa.s quite familiar with the crossing, she had passed over it often, on her way to and from church ; she says she knew it to be a place of danger, she was old and could not see well, the injury was received after night, and the night was dark. Hid she exercise a proper measure of care ? She was bound to use such care as a prudent person would have used under such circumstances. The measure of duty in the case of a municipal corporation in reference to its streets is but ordinary, and the care of those who use them is the same, whilst the standard of the degree of care is to be measured according to the circumstances. Eor this reason the question of contributory negligence was peculiarly for the clear and free exercise of the judgment of the jury, under proper instructions from the court. The language of the court that there was really very little tes*479timonj upon this subject was perhaps misleading, but for this alone we might not reverse. All the facts and circumstances attending the injury were to be fully considered on this point.
Judgment reversed and a venire facias de novo awarded.