(charging the jury).
The points of law raised in this case and upon which we have been asked to charge are not new, they have all been previously decided by the Courts of this State and are now well settled law.
Sixteenth street and Scott street are public streets and high- • ways of this city and they with all the streets within the limits of the city are under its jurisdiction and control and it is its duty to *309maintain the same, and to see that they are kept in safe and proper condition for public use. The city is bound to perform this duty with due care and diligence and the public have a right, in the absence of proof to the contrary, to presume that it has so performed its duty and that the streets and. highways are safe and in a passible condition for travel.
The law, however, imposes duties also on travelers using the public streets. They must use all reasonable care and caution to avoid danger. They may not carelessly run into danger, and then make others pay for their own negligence. Wilkins vs. Wilmington, 2 Marvel 132.
They must exercise care proportionate to the known danger. They cannot recover for injuries from an accident caused by driving into a hole or obstruction in the street in the daytime, if they either knew or saw, or by the reasonable use of their eyesight ought to have seen, such hole or obstruction and which accident they could have avoided by reasonable care and caution.
If you believe the evidence offered by the plaintiff as to the condition of Sixteenth street and that he knew of the alleged defect or danger, or ought to have known, provided he had used reasonable care in looking • but not so looking and without reasonable care drove carelessly and negligently along the street and into the opening, he was guilty of contributory negligence and may not recover, whatever may have been the condition of the street and even if the city was negligent; neither is he entitled to recover if the injury arose from the plaintiff’s negligence in the manner of loading his wagon or by the want of the exercise of reasonable care and caution in turning the street corner, because under the law he is not entitled to recover under the facts of this case if he in any way by his carelessness and negligence contributed to the accident.
If, however, you believe from the evidence that this hole was left in the street or highway after the city had knowledge of its existence, or in your judgment by the exercise of reasonable care, should have had knowledge of its existence by its long continuance (for in such case the law implies knowledge) then the city is guilty *310of negligence and if the plaintiff, while in the exercise of ordinary care and without negligence on his part was injured by such negligence, the city is liable.
The right of the plaintiff to recover is based on the negligence of the defendant, and the burden is "upon him to prove by a preponderance of evidence that the injury resulted from such negligence
When the testimony is conflicting you are to reconcile it if you can. If you cannot reconcile it, then you must take into consideration the number and character of the witnesses, their apparent interest, manner of giving their testimony, their intelligence and opportunities for obtaining correct information, and give credit to those you think most worthy of credit under all the circumstances and be governed by the weight of the testimony.
“Applying the law as above stated you are to determine whether the injuries complained of resulted from the negligence of the defendant alone; if so your verdict should be for the plaintiff.” On the other hand you are to inquire whether they resulted from the carelessness of the plaintiff alone; or from the combined carelessness of the plaintiff and the defendant. It the plaintiff alone was negligent, or if he contributed in any manner by his negligence to the injuries your verdict should be for the defendant.” Wilkins vs. Mayor and Council, Supra.
If your verdict should be for the plaintiff it should be for such reasonable sum as will compensate him for his injuries to his wagon and to. himself, including therein all expenses for medical attendance, a reasonable allowance for nursing and drugs, for the loss of time and wages and for his pain and suffering in the past, and such as may come in the future, resulting from the accident and for such permanent injuries as from the evidence, the jury may believe will cover his pecuniary loss from his diminished ability to earn a living in the future.
Verdict for the plaintiff for $675.