Opinion by
Mb. Chief Justice Sterbett,This case involved the question of defendant company’s negligence, causing the injury complained of, and also contributory negligence of the legal plaintiff.
An examination of the testimony with special reference to these inquiries, has satisfied us that they were both questions of fact, peculiarly within the province of the jury, and solely for their consideration and determination. As to the first, the testimony is such that the jury could not hesitate in finding against the defendant. Indeed, the carelessness of its employees was so gross as to amount almost to criminal negligence. The evidence as to the plaintiff’s contributory negligence is comparatively slight, but it was sufficient to carry the case to the jury. Both questions were fairly and fully submitted to them in an elaborate charge, of over fourteen printed pages, in which their attention was specially called to the facts and circumstances disclosed by the testimony. Presumptively, the verdict is predicated of their finding that defendant company’s negligence was the cause of injury, and that plaintiff was not guilty of contributory negligence. This appears to be in full accord with the weight of the testimony.
The first specification charges that the court erred in refusing to affirm defendant’s fifth point recited therein. In that point the court was requested to charge, as matter of law, that certain acts of Mrs. Baker, done by her agent, constituted con-i( tributary negligence, and that there could be no recovery. The learned judge’s answer, embodying his reasons for refusing to affirm said point, is in itself a sufficient vindication of his ruling. Some of the allegations of fact bearing on the question of contributory negligence were neither admitted nor proved, and hence it was necessary for the jury to pass upon them. *600Inferences of fact had to be drawn from undisputed facts and circumstances considered in connection with such other facts as might be found by the jury. Moreover, the case is not one in which the standard of duty is fixed and determinate. As was said in McCully v. Clarke, 40 Pa. 406 : “ 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, where a higher degree of care is demanded in some circumstances than under others, where both the duty and the extent of performance are to be ascertained as facts, a jury alone can determine what is negligence and whether it has been proved.” The principle, thus clearly stated by Mr. Justice Strong, has been recognized in many cases, among which are Schum v. Penna. R. R. Co., 107 Pa. 12; Railroad Co. v. Peters, 116 Pa. 206; Railroad Co. v. Jones, 128 Pa. 308; Fisher v. Railway Co., 131 Pa. 292. In the case last cited, it was said: “ 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 even in doubt, or inferences of fact are to be drawn from the testimony, it is the exclusive province of the jury to determine what the facts are, and apply them to the law as declared by the court.” Further consideration of the subject is unnecessary. There was no error in refusing to affirm the point as presented.
The second specification alleges error in admitting “ the testimony of S. H. Baker as to the conversation that occurred between him and Dillon,” the nature and character of which are fully set forth in the specification. The testimony was both relevant and competent, and hence there was no error in admitting it. If the evidence tending to show Dillon’s relation to the company defendant was believed by the jury, he was, pro hac, the representative of the company, acting within the scope of his employment, and hence his principal would be affected by his acts and declarations. To have excluded the testimony of the witness would have been error.
There is no error in the learned judge’s answer to defendant’s point recited in the third and last specification. The vice of the point, as presented; is that it puts upon the plaintiff the burden of proving a negative, viz.: “ that Mrs. Baker in no way *601contributed to her own loss by her own negligence.” Contributory negligence is matter of defence, and the onus probandi is on the defendant, unless the plaintiff’s own evidence sufficiently discloses the fact of contributory negligence. In that event, the plaintiff cannot recover, and of course defendant is relieved from the necessity of proving what has already been established by the plaintiff’s evidence. If, however, the plaintiff makes out a prima facie case, without disclosing contributory negligence, the defendant must assume the burden of making out his defence: Canal Co. v. Bentley, 66 Pa. 30, 33.
There appears to be nothing in the record that would justify a reversal of the judgment, and it is therefore affirmed.
Judgment affirmed.