Opinion by
Mb. Chief Justice Stebbett,This action was brought to recover damages for personal injuries caused by the negligence of defendant company in carelessly and recklessly running one of its cars into a gang of workmen (of which the plaintiff was one) then engaged in repairing or paving Wasliington avenue on which defendant’s railway was laid. The evidence tended so strongly to establish the fact of negligence, on which the action was based, that, in order to escape the consequences thereof, the defendant contended that plaintiff was guilty of negligence which contributed to his injuries, etc.; and accordingly in its seventh and eighth points for charge, it requested the court to give these binding instructions to the jury:
“ 7. That, under all the evidence in this case, the plaintiff is not entitled to recover.
“ 8. That the plaintiff was guilty of contributory negligence in this case and is therefore not entitled to recover.”
The learned trial judge, rightly refusing to affirm either of these propositions as matter of law, fairly and impartially submitted the question of plaintiff’s contributory negligence to the jury as a question of fact to be determined by them from all the evidence. In view of the testimony that was then before the jury, it is impossible to see how he could have done otherwise without usurping the functions of the jury, and undertaking to determine questions of fact which were exclusively within their province, and wholly outside the scope of a presiding judge’s duties under any rational system of trial by jury.
Without unnecessarily consuming time in commenting on the testimony for the purpose of showing that it contains no undisputed evidence, and no admitted fact or facts that would have justified the court below in holding as matter of law that the plaintiff was guilty of contributory negligence, it is sufficient to say that after a careful consideration of the record we reached the conclusion that there is nothing therein on which such binding instructions could have been legally based. Without disregarding his own duty, and usurping that of the jury, the *420learned trial judge could not have done otherwise than refuse to affirm defendant’s seventh and eighth requests for instructions.
• We find no substantial error in either of the six remaining specifications; nor is there anything in the questions presented by them that requires discussion.
Judgment affirmed.