The opinion of the Court was delivered by
Paxson, J.This action was brought in the Court below by Mary Kissinger against the city of Lancaster to recover damages for-an injury to her husband resulting in his death. Henry M. Kissinger was a teamster, and on the morning of July 22d,. *2561878, was driving a pair of horses, attached to a platform wagon, through the streets of the city of Lancaster. The wagon was loaded with loose boxes containing tobacco, upon one of which Kissinger was seated. There were no sides to the wagon, and nothing to keep the boxes in place. In crossing a gutter, the jar threw Kissinger off' his insecure seat, lie fell between the horses and astride the tongue. The horses were not frightened, and continued walking. The deceased walked between them for a short distance "What then occurred is best described by one of the plaintiff’s witnesses: “ He lit on his feet and walked, along; the horses didn’t run away; he tried to catch the lines; he caught one side and drew the horses over towards the fence, and when it commenced to eraek, the horses got frightened and commenced to run; he could not keep [stand]"up, and tripped himself and fell, and got under the wagon; I saw the hind part of the wagon go over his body.”
The plaintiff contended that the gutter was defective and dangerous, and that this was the proximate cause of the accident. The character of the gutter has been settled by the verdict of the jury. It appears to have been too deep for the size of its approaches, creating a rude jolt or jar when a wagon crossed it. It had, however, been in existence for several years, and the undisputed evidence shows the deceased knew its condition, and had on the same morning crossed it with the same team, and a similar load, in safety.
The gutter does not seem to have been out of repair; the defect wras in the grade. It was urged on behalf of the city, that it was not responsible for an accident the result of a defective grade, and the Court was called upon by defendant’s eighth point to so instruct the jury. The Court declined to give such instruction, in which we cannot say there was error under the circumstances. There was really no question of grade before the jury. No evidence had been offered to show that the grade of the gutter had been fixed by the city authorities as it was found to be at the time of the accident. On the contrary, it appeared from the defendant’s evidence, that six inches was the depth for gutters according to instructions issued by the city regulator. This gutter was much deeper ; several witnesses say it was eighteen inches in depth. The city, after the accident, raised it several inches. Under the circumstances, Carr v. Northern Liberties, 11 Casey, 324, and other authorities cited by the defendant do not apply.
The two principal questions, as developed upon the trial, were, 1st, was the defective gutter the proximate cause of *257the injury ? and, 2d, was the deceased guilty of contributory negligence ?
The first question was distinctly raised by the.defendant’s fifth and sixth points (see third assignment). The Court treated them as- one, and answered them together. The instruction prayed for was declined. In this we think there was error. Both points should have been affirmed without qualification. It is true the affirmance of the defendant’s fifth point would practically have withdrawn the case from the jury, for although its facts depended upon the testimony of J. A. Sprenger, yet Mr. Sprenger was one of the plaintiff’s witnesses, and his evidence was not disputed. It was equivalent to a prayer for instructions upon the admitted facts of a case which has been expi’essly sanctioned in Hoag v. The Railroad Company, 4 Norris, 293, and other cases.
It is not always easy to correctly ascertain the proximate cause of an accident. The general rule applicable to such eases is, “ that the injury must be the natural and probable consequence of the negligence ; such a consequence as under the surrounding circumstances of the case, might and ought to have been seen by the wrongdoer as likely to flow from his act:" Hoag v. The Railroad, supra ; Pennsylvania Railroad Co. v. Kerr, 12 P. F. S., 353 ; Same v. Hope, 30 Id., 373.
If we apply this principle to the case in hand, it will at once be seen that the gutter was not the proximate cause of the injury to the deceased. In crossing it he -was thrown from his seat by the jolt occasioned thereby. But he was not injured by the fall, nor was he necessarily placed in peril. The horses were not frightened, and continued to walk. It is clear that but for his unfortunate blunder in pulling the horses up against the fence, the breaking of which alarmed them,he would not have been injured. There is no analogy between these facts and the case of a man who is in peril by reason of a runaway horse and a dangerous precipice, as in Hey v. The City, 31 P. F. S., 44. In such instances a man is not to be held to the exercise of the soundest judgment. The peril of such a position may well excuse an act which in cooler moments would be avoided. In the case in hand, if the horses had been frightened, and were running away, the mistake of pulling the wrong line would have had little significance. But for a man who was in no peril, with a quiet team, to pull it up against the fence until, by the breaking thereof, the horses were frightened and ran away, is quite a different matter. It was not, in the language of the rule above cited, “ the natural and probable consequence” of the defective gutter.
*258The defendant attempts to hold the plaintiff to the rule that the deceased was bound to exercise care according to the circumstances; that inasmuch as he knew the dangerous condition of the gutter, “ he was bound to exercise such care and caution as its alleged dangerous condition should have suggested to him.” See fourth assignment. The Court below denied this proposition, and held the deceased was bound only to use ordinary care. This idea runs all through the rulings of the Court. As a general principle, ordinary care is undoubtedly the rule in the use of a public highway : Erie v. Schwingle, 10 Harris, 384 ; Lower Macungie Township v. Merkhoffer, 21 P. P. S., 276 ; Borough of Pittston v. Hart, 8 Norris, 389.
In this case much of the danger was the result of the insecure position of the deceased upon his wagon. His seat was hut a loose box, and he had nothing to hold on to. He was liable to be thrown off by any sudden jar, whether caused by the gutter, a loose stone, or any inequality of the road. This is patent, and ought not to be ignored in the case. "What was the proper measure of care under such circumstances ? The same care that a man with a fixed load and a firm seat would be expected to take ? Certainly not. Negligence is the absence of care according to the circumstances. If a man is driving an untamed horse, he naturally and properly exercises more care than if he was driving one entirely gentle. So of the road. If it is rough and out of repair, he exercises more care than if well graded and macadamized. The deceased knew of the defects in the gutter; he knew also that he had an unsafe seat; he was bound to use such care as a prudent man would have used under such circumstances, and the Court should have so instructed the jury.
It was error to exclude the evidence referred to in the eighth and ninth assignments. It was certainly competent to show that the deceased had driven across the gutter several times shortly before his death. It would be evidence of his knowledge of its condition.
The defendant was entitled to an unqualified affirmance of its second point. This is not denied, but it was argued that the answer of the learned judge was a substantial affirmance. It is much better when a point can be affirmed to say so. When affirmed with a qualification or in language different from the point itself, it is very apt to mislead the jury. It certainly weakens the force of the point with them.
There is nothing else in the case that requires discussion.
J udgment reversed.