Opinion by
Me. Chief Justice Steeeett,While the testimony in this case is more or less conflicting and unsatisfactory, it sufficiently presented, inter alia, two controlling questions of fact which it was the duty of the court to submit to the jury for their determination, viz : 1st. Whether defendant company’s employees, in charge of the car in question, were guilty of negligence which occasioned the death of plaintiff’s husband; and 2d. Whether any negligent act of the latter contributed to his injury and consequent death. These *197and all other questions of fact arising out of the testimony were fairly and fully submitted to the jury by the learned president of the common pleas in a clear and adequate charge to which no exception appears to have been taken. Without referring to the charge in detail, it is sufficient to say that it embraces and correctly disposes of every legal question involved in the case. After fully explaining what constitutes negligence, contributory negligence, etc., and calling attention to the testimony relating thereto, the jury were instructed to determine, in the first place, whether the plaintiff had satisfied them “by the weight of the evidence that there was negligence on the part of the persons running the car. ... If they were not negligent, there could be no recovery.” If on the other hand the jury came to the conclusion that defendant’s servants were negligent, their next duty was to determine whether plaintiff’s husband was also guilty of negligence. After referring to the testimony relating to that question the learned judge proceeded to further instruct the jury as follows: “All these matters you will have to take into consideration, and endeavor to ascertain what the facts really were, reconciling the testimony of the different witnesses, if you can, and determining which are entitled to credit, and what the facts really are; and, having ascertained that, determine whether the facts, as they are, show that the deceased acted as a person of ordinary care and prudence would act, or ought to act .... under the circumstances. If he did, he was not negligent. If he did not, he was negligent and .... the plaintiff cannot recover.”
Acting under full and comprehensive instructions, covering all the questions presented by the testimony, the jury, by their verdict, definitively settled in favor of the plaintiff every material question of fact in controversy.
We find nothing in the record that would justify us in sustaining any of the specifications of error; nor do we think either of them requires discussion. In the fourth and fifth, binding instructions, unwarranted by the testimony, were requested. The others are, in part at least, predicated of facts which were neither admitted nor conclusively established by undisputed evidence. In the concluding' clause of the third, it is assumed as a fact that “ he (the deceased) did not as he was legally bound to do, use his eyes or ears or senses as to the approach*198ing car.” No súcb. fact was either admitted or conclusively-proved. Whether it was so or not was a question of fact for the jury. As has been remarked, the testimony was more or less conflicting and unsatisfactory in relation to that, as well as other matters that are improperly assumed in the first three points. The case was carefully tried, and the judgment should not be disturbed.
Judgment affirmed.