delivered the opinion of the court, February 7th, 1887.
Two well established principles, governing cases like that in hand, seem to have been overlooked or disregarded by the court below in the disposition of the present contention. The one is that, as a general rule, questions of negligence are for the jury, and cannot be determined by the court. This rule *139with its exception is well stated in the case of McCully v. Clarke & Thaw, 40 Pa., 399, wherein it is said, by Mr. Justice Strong.: “ When a duty is defined a failure to perform it is of course negligence, and may be so declared by the court; but' when the measure of duty is not unvarying, when a higher degree is required under some circumstances than under others, and where both the duty and the extent of performance are to be ascertained as facts, the jury alone can determine what is negligence, and whether it has been proved.” An illustration of this rule and its exception may be found in the case of one who, without stopping to look and listen for approaching trains, attempts to cross the track of a railroad, and is injured. Here a fixed and well defined duty has been violated, and the court determines that there has, ipso facto, been negligence. But if it were so, that he did, before attempting to cross, stop, look and listen, then, whether he was otherwise negligent, and whether the railroad company was remiss in its duty, are questions which a jury only can settle. As cases of accurately defined duty seldom arise, and as ordinarily both the duty and the neglect must be ascertained from the attendant facts and circumstances, we may assume the generality of the rule above stated. In the case in hand, the duty of the conductor, in expelling the plaintiff from the cars at the time and place selected for that purpose, was certainly one that was not strictly defined. It may be admitted that as a faithful officer he was obliged to eject Arnold from the train, but then the very important question arises, did he, as the company’s employee, properly discharge this obligation in dismissing the plaintiff from the cars between the tracks of the railroad, on a very dark night, at a way station that, from the want of light in or about it, could not be seen? As everything in this proposition depends upon facts and circumstances, its solution was for the jury. If, indeed, we are not to treat the plaintiff as an intentional intruder, we may regard the contention as settled by the case of The Lake Shore and Michigan Southern Railroad Company v. Rosenzweig, 3 Amerman, 519, in which we held, per Mr. Justice Trunkey, that, “ where a passenger purchases a railroad ticket no irrebutable presumption arises that he is informed as to the rules and regulations of the company prohibiting the use of such tickets on particular trains when no such prohibition appears on its face. If in such case the passenger, without knowledge of such regulation, takes passage upon any one of such prohibited trains, he cannot be treated as a passenger; and, although he has no right to a passage, cannot be expelled from the train as a trespasser, but must be treated as a passenger who by mistake has got upon a train on which, by his contract, he is not entitled to ride.” *140But the second rule to which we have adverted is, that even a trespasser cannot be ejected from a train without a reasonable regard for his safety. This rule as stated by Mr..Justice Hunt, in the case of The Sioux City & Pacific Railroad Co. v. Stout, 84 U. S., 657, is as follows: Whilst a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to a passenger, it is nevertheless not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts. And this same doctrine has been approved by our own authorities, inter alia, in the cases of the Pennsylvania Co. v. Toomly, 91 Pa. 256; Pennsylvania Railroad Co. v. Lewis, 79 Id., 33; Hydraulic Works Co. v. Orr, 83 Id., 232; Pennsylvania Railroad Co. v. Hummel, 44 Id., 275, and Biddle v. The Passenger Railway Co., 102 Id., 551. If then, we assume that the plaintiff, was a trespasser, still the defendant had a duty to perform with reference to his safety which it was not at liberty to neglect, hence, the court erred in directing a nonsuit. But whether Arnold was a trespasser on the train or not, was also a question for the jury. That his ticket expired on the 6th of April at midnight, there can be no doubt, and as this was a fixed fact of which he was bound to take notice, nothing can be predicated of that ticket in his favor. Still the unused coupon had value, and as the company under the Act of the 6th of May, 1883, was bound to redeem it, he may well have supposed, assuming that he knew nothing of the rule of the company in this particular, that by tendering money to the conductor, as he did, sufficient with the value of the coupon, to cover the price of a return ticket, he would be entitled to a passage to Philadelphia, whither he w.as bound, and if the jury should so find, he would in that case not be a trespasser, and though liable to expulsion, could not be treated as a willful intruder. In other words, as was held in the Rosenzweig case, above cited, though prima facie he was improperly on the train, yet he might rebut that presumption by facts and circumstances going to show that he was there from no disposition to commit a trespass, but by mistake, and from misapprehension of the defendant’s rules.
The judgment is reversed, and a new venire ordered.