This case depended entirely on questions of fact which were fairly submitted to the jury in a clear and adequate charge to which no just exception can be taken. The controlling questions were, the alleged negligence of defendants’ employees, in charge of its car, resulting in the injury and loss of plaintiff’s horse, on the one hand, and the alleged contributory negligence of plaintiff’s driver, on the other. In view of the testimony, these were both questions of fact, exclusively for the consideration of the jury. To have instructed them to find for defend ant compan}-, as requested, would have been manifest error The plaintiff’s driver had as much right to be on the highway, with his employer’s team, as the defendant had to be there with its passenger car. As was said by Mr. Justice Heydbick *282in Gilmore v. Passenger Railway Co., 153 Pa. 81, “ Street railway companies have not an exclusive right to the highways upon which they are permitted to run their cars, or even to the use of their own tracks. The public have a right to use these tracks' in common with the railway companies, and therefore, while the rights of the latter are in some respects superior to those of the former, as was said in Ehrisman v. East Harrisburg Railway Co., 150 Pa. 180, it is not negligence per se for a citizen to be anywhere upon such tracks. So long as the right of a common user of the tracks exists in the public, it is the duty of passenger railway companies to exercise such watchful care as will prevent accidents or injuries to persons who, without negligence on their own part, may not at the moment be able to get out of the way of a passing car. The degree of care to be exercised must necessarily vary with the circumstances, and therefore no unbending rule can be laid down.
The excerpts, from the learned judge’s charge, recited in the first and second specifications, are entirely free from error. The instructions to the jury, therein contained, were not only warranted by the testimony, but, in the circumstances, they were necessary and appropriate.
As qualified by the learned judge, plaintiff’s point, recited in the third specification, was rightly affirmed. Plaintiff’s point, recited in the fourth specification, was also rightly affirmed.
The verdict in favor of plaintiff is predicated of findings of facts which were clearly warranted by the testimony, and there is no reason why the judgment entered thereon should be disturbed.
Judgment affirmed.