delivered the opinion of the court,
The defects in the sidewalk had existed so long and were so well known to the plaintiff at the time he was injured, that the sole defence is that the plaintiff failed to show a case clear of contributory negligence. This defence would prevail had there been a safe and practical way by which the plaintiff could have reached his home. It is not alleged in the points submitted by the defendant, that there was a safe way; only a suggestion that the .plaintiff could have conveniently found a safer way in the street.
The jury were explicitly and repeatedly instructed that if the plaintiff failed to show a case clear of contributory negligence he could not recover. And their attention was so fairly directed to the testimony touching the question, and all the rulings of the court at the trial were so unexceptionable, that the defendant complains of nothing, save that its second, third, fourth and eighth points were refused, which points involved the finding of the fact of contributory negligence by the court, and the direction of a verdict for the defendant.
The defendant’s second point is as follows : “ The plaintiff’s testimony showing that he well knew of the defects *in the sidewalk, and that he could have avoided them by walking along the fence, or in the street, or around the square; and that having voluntarily chosen to take the risk of walking on the sidewalk in its defective condition, he was guilty of contributory or concurrent negligence, and cannot recover in this action.”
*245That point was refused, for the reason that the assumed facts therein were not the whole truth; otherwise it would have been affirmed. The accident occurred after 9 o’clock in the evening when the plaintiff was going from church on the direct way to his home. The night was dark and the street unlighted. The witnesses agree -that the sidewalks on both sides were in bad repair, both unsafe, but there is some conflict of testimony as to which was in the worse condition. There is testimony that tlie walk along the fence was very unsafe, and as dangerous as the sidewalk; also that by going around the square the plaintiff would have been compelled to run off the sidewalks, and might have run into several of the other bridges and met with an accident; also that the street was muddy and had he waded through the mud there would have been danger of falling into chuck-holes, but had he fallen in the mud he might not have been so badly hurt. Several witnesses thought the muddy street was safe for a man to walk; but none testifies that any person did walk on it. And none testifies that it was a safe way for the plaintiff to go around the square. Hence it was for the jury to determine whether the plaintiff could have found a safe walk along the fence, or on the street, or around the square, to his home. And they were instructed that if he knew the sidewalk was dangerous “ and could, with reasonable care, have avoided it by turning outside on the street, or by taking the other side of the avenue, or the space between the board-walk and the fence, or could have with reasonable care taken his way home by some other street or walk, he was guilty of contributory negligence and cannot recover.”
But the jury were not instructed that the plaintiff should have taken another unsafe route ; in effect, they were instructed that if he voluntarily took the direct walk, even if he knew it was unsafe, instead of one indirect and unsafe, and acted with the care with which a prudent man should have acted, under the circumstances, he was not guilty of contributory negligence.
Among the circumstances was the well-known bad condition of the streets and walks in that part of the city, which streets and walks were in constant use. Even if the muddy street was safer for pedestrians than the sidewalk, it could not be expected that persons would shun the walk and wade the street. When a city leaves a walk without guard or warning, persons going on foot usually take the walk — persons of ordinary prudence in the exercise of ordinary care, usually travel on the sidewalk, when it is known to be defective, rather than risk the dangers of the street. There had been no sudden or recent injury to the public ways ; the residents had become *246accustomed to their use in their bad condition, and the city-officers were indifferent. It is not the law that a resident in a city must remain continuously on his property, when the city grossly neglects the repair of its streets, under pain that if he ventures on the streets or walks and suffers injury resulting from the city’s default,-he can recover nothing. Nor is the resident bound under like pain to abstain from going to church in the evening, or other places when he may be moved to go by a sense of duty or love of pleasure. On his part it is enough if he takes the ordinary care which ought to be exercised by a prudent man, under the circumstances. This sidewalk had all along been in use, was generally used by many people, and though unsafe, very few persons had received injury. The rulings of the court below, and what we have said, apply to such walk or street; not to one where a prudent man in the exercise of due care, would not travel.
A glance at the facts, as settled by the verdict, shows that this ease is not governed by the controlling principle in City of Erie v. Magill, 101 Pa. St., 616, and Fleming v. Lock Haven, 15 W. N. C., 216. In each of those cases the accident was in daylight, and a convenient and safe way was known to the injured party who chose not to take it.
Here, with little verbal change, the language of Justice Clar-K, in Borough of Easton v. Neff, 102 Pa. St., 474, is fitting: “ 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. Negligence is defined, however, by the absence of care according to the circumstances. In this case the plaintiff was quite familiar with the walk. He had passed over it often. He says he knew it to be a place of danger. The injury was„received after night and the night was dark. Did he exercise a proper measure of care? He was bound to use as much care as a prudent person would use 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.”
In view of the testimony, affirmance of the defendant’s second and eighth points would have been error. As abstract propositions the third and fourth points might have been affirmed, but with reference to the testimony, the court properly ruled that they depend on the answer to the second point. Under the charge, the jury must have found that the street was unsafe to walk on, else the verdict would have been for the defendant. Whether it was daylight or dark the plaintiff *247was not guilty of negligence in taking the unsafe walk when it could not be avoided by taking a safe one. That it was dark was a fact to be considered. Piad it been daylight, it is unlikely that the plaintiff would have been injured. He says he thought he hacl passed the dangerous places before he fell. The risk was greater in the night than in the day, but that is no reason .why he should have taken an unsafe and dangerous way of which he had less knowledge.
Judgment affirmed.
Gordon and Paxson, JJ.-, dissent.