Opinion by
Mr. Chief Justice Stebbett,In the light of the testimony before the jury, this was clearly a case for their consideration. That introduced on behalf of the plaintiff tended to prove, in substance, that while driving a loaded two-horse wagon, westwardly, on Robinson street, Allegheny city, he came to the Federal street crossing and there halted about ten or twelve feet east of defendant’s track, on which he saw one of its cars approaching, from the south, apparently at its usual rate of speed and a considerable distance off. He was then signalled by the company’s watchman to cross the track, and while in the act of doing so was struck by the car and seriously injured. When thus signalled the approaching car was quite a distance south of the crossing, — so far therefrom as to apparently afford him ample time to cross with entire safety.
The circumstances leading up to and connected with the collision were fully detailed by the-plaintiff and his witnesses. Some of the .latter testified to the reckless rate of speed at which defendant’s car was running. One of them, describing the occurrence, said that plaintiff “ was coming down Robinson street and he got as far as Federal street, within about twenty feet of the track. He stopped there and the flagman on the opposite side of the street beckoned him to come across. ... At that time, there was a Rebecca street car coming down off the bridge. I suppose it was running about twenty-five or thirty miles an hour. . . . Just about that time he came to the track and got about half way across when the car struck him. It got so close on him he saw he couldn’t get out of the way and he swung his team off to the right, and just as he swung his team off the car caught him, caught the front wheel of the wagon and threw him off, down between the wagon and the *398car, and dragged him up the street, I suppose, the length of thirty or forty feet.”
One of defendant’s witnesses, — the person pointed out as the watchman who beckoned plaintiff to cross, — testified that “ the car was running at a proper rate of speed, about eight or ten miles an hour, and the wagon was coming in the same direction, driving along the track.” He denied that he had beckoned plaintiff to cross ; and his version of the occurrence differed materially from that of plaintiff’s witnesses. The logic of the verdict, however, is that the jury did not entirely rely on his recollection of what occurred.
It may appear incredible that an electric ear should be permitted to run, on one of the most crowded thoroughfares of the city, at such a reckless rate of speed as that indicated by some of the witnesses; but, when we consider the distance to be traversed by the car from the end of the bridge to Robinson street — nearly two squares — it becomes evident that the car in question was running at a dangerously high rate of speed. If the defendant had exclusive right to the street it would present a different question; but no such exclusive right is or can be claimed, and, so long as a user of the street in common with the public exists, it is the duty of street railway companies to exercise such watchful care as will prevent accidents or injury to persons or property. The degree of care required must necessarily vary with the circumstances of each case.
There was a manifest conflict of testimony as to material matters of fact, bearing on the questions of negligence and contributory negligence involved in the issue. This necessarily carried the case to the jury, and to them it was fairly submitted with instructions that were entirely adequate and free from error. It was the special province of the jury to determine from all the testimony before them what the facts were, whether the injury complained of was caused by defendant’s negligence, and, if so, whether plaintiff himself was guilty of negligence which contributed thereto.
The only assignments of error are to the instructions recited in the first and second specifications, and the learned judge’s refusal to say, as requested, “ that under all the evidence . . . the verdict must be for defendant.” As to the instructions complained of, they were quite as favorable to the company *399defendant as it could reasonably ask; and to have withdrawn the case from the jury by binding instructions to find for the defendant would have been plain error. There is no merit in either of the specifications. The insuperable difficulty in defendant’s way is, that, upon sufficient testimony and under proper instructions, the controlling facts were found by the jury in favor of the plaintiff.
Judgment affirmed.