Opinion by
Mr. Justice Sterrett:There was no error in refusing to charge: “That, under all the evidence, the verdict of the jury should be for the defendant.” The testimony tending to prove negligence of the car' driver, causing the injury complained of, was such as to require-the submission of that question to the jury; and it was accordingly submitted under carefully guarded instructions contained in the general charge and answers to points presented by the respective parties.
While there was some evidence of contributory negligence on the part of plaintiff below, it was also for the jury. If the court had undertaken to say as matter of law that she was guilty of *196negligence which contributed to her injury, it would have been manifest error. What constitutes negligence in a given exigency is generally a question for the jury and not for the court. Where material facts are disputed or inferences of fact are to be drawn from the testimony, the case should be submitted to the jury. It is only when the precise measure of duty is determinate — the same under all circumstances — that the court can undertake to determine what constitutes negligence. When the (duty is defined, a failure to perform it is, of course, negligence, :and may be so declared, as matter of law, by the court. Pennsylvania R. Co. v. Werner, 89 Pa. 59; Schum v. Pennsylvania R. Co. 107 Pa. 8, 52 Am. Rep. 468.
The questions of negligence and contributory negligence were •fairly raised by the testimony, and both were properly submitted to the jury. The first assignment of error is .not sustained.
The second and third specifications are not according to the :rule which requires, when the answer to the points is assigned for error, that “the points and answers referred to must be quoted totidem verbis in the specifications.” Buie 23.
We might, therefore, pass these specifications without further motice; but, turning to another part of the record, we have the ■qualified answers complained of, and fail to discover in either -of them anything of which plaintiff in error has any reason to ..complain.
The affirmance of plaintiff’s second point is the subject of •complaint in the fourth and last specification. In that point the court was requested to charge: “If the jury believe that the driver of the car saw the plaintiff or heard her warning cry, or ought, by the exercise of ordinary vigilance, to have seen her or heard her cry, in time to avert the accident, he was guilty of negligence, and plaintiff should be entitled to their verdict.” Standing alone this point would perhaps be objectionable, in that it ignores the element of contributory negligence, of which •there was some evidence; but that ground of defense was so fully ¡brought to the attention of the jury in answers to defendant’s •second, third, and fourth points, as well as in the general icharge, that the jury could not have been misled by the answers of the learned judge to the point in question.
On thé whole, the case was fairly submitted to the jury on all ¿he questions of fact arising out of the testimony, and there ap*197pears to be nothing on the record that calls for a reversal of the judgment.
Judgment affirmed.