delivered the opinion of the court:
1. There was no error in permitting the witness, Bowman, to testify as to the apparent speed of the car. ■ He watched the approach of the car and saw the collision. The speed of the car was an important fact in the case, and was not capable of better or more certain proof. Such evidence cannot be called expert testimony. It is evidence of a fact, the weight of which goes to the jury, and depends upon the capacity of the witness, his experience, and more particularly his opportunity for observation at the time.
2. There is no such variance between the allegations of the declaration and the proof offered in their support as could have justified the court in granting defendant’s request to take the case from the jury, and it was properly refused. Moreover, it seems perfectly clear that the defendant could not have been misled by the form of the declaration and was not taken by surprise by anything in the evidence.
3. The court did not err in refusing to instruct the jury to return a verdict for the defendant. The right to take a case from a jury is one to be exercised only in plain cases and with great caution. We will consume no time with a review of the evidence set forth in the record; it would serve no useful purpose. In our opinion, it made a case *309proper to be submitted to the jury, with an appropriate charge, laying down the rules of law applicable thereto.
The defendant’s contention on'this point is partly founded on the assumption that street cars have the preference of the crossing, under all circumstances; that persons riding or driving are under a special obligation to look out for approaching cars and always to stop for them, and that the car drivers or motormen have the right to act upon this assumption. The soundness of this proposition will be considered under the next assignment of error founded on the charge given to the jury with respect thereto.
4. Defendant asked an instruction to the effect that the car was entitled to the right of way, and the men in charge of it had the right to rely upon the recognition of this right by the plaintiff. This was refused, and the court, on the other hand, charged the jury, that the defendant must run its cars with due regard to the rights of others in the lawful use of the intersecting streets, and that it had no right in preference to such other persons. The court did, however, call the attention of the jury to the greater dangers which lie in crossing streets upon which .cars are run than others, and to the necessity for the exercise of a proportionate degree of care at such crossings by persons riding in ordinary vehicles.
Even in the case of steam railways, it has been held that the duties and obligations of those running the cars and of those who cross the track at proper places, are mutual and reciprocal. Continental Imp. Co. v. Stead, 95 U. S. 161, 165. In that case, it was said: “ For, conceding that the railway train has the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative duties. The right of precedence referred to does not impose upon the wagon the whole duty of avoiding a collision. It is accompanied with, and conditioned upon, the duty of the train to give due and timely warning of approach. The duty of the wagon to yield precedence is based upon this condition. *310Both parties are charged with the mutual duty of keeping a careful lookout for danger. * * * The mistake of the defendant’s counsel consists in seeking to impose upon the wagon too exclusively the duty of avoiding collision, and to relieve the train too entirely from responsibility in the matter. Railways cannot expect this immunity so long as their tracks cross the highways of the country upon the same level. The people have the same right to travel on the ordinary highways as the railway companies have to run trains on the railroads.”
It cannot be said, however, that street railways have even this limited right of precedence. The necessities of their situation are quite different. Steam railway trains run upon fixed and regular schedules and at far greater intervals in even the largest cities. They move at a greater rate of speed, and are far more difficult to stop. Besides, they carry great numbers of passengers and important mails, and the reasons are many and controlling why they should be made to suffer as few delays as possible.
As a general rule, the charge should embody such propositions of law only as may be strictly applicable to the material issues raised by the evidence. In ordinary cases of accidents at crossings, it might be wholly unnecessary, and at times possibly misleading, to instruct the jury with respect to this claim of precedence. But when, as in this case, the equality of the rights of parties is disputed, or the question becomes important in the determination of the existence of negligence upon the one hand and of contributory negligence upon the other, the jury should be told that neither party has a superior right; that each must exercise his right with due regard to the equal right of the other and with reasonable care under all the circumstances; and that each must refrain from interfering with the right of the other. Watson v. Minn. Street Railwy Co., 53 Minn. 551; O'Neill v. D. D., etc., Railway Co., 129 N. Y. 125; C. W. D. R. Co. v. Ingraham, 139 Ill. 659, 667; Lynam v. Union Railway Co., 114 Mass. 83, 88. This was the substantial effect *311of the general charge given, and there was no error in refusing defendant’s special prayer.
5. In the course of a lengthy charge carefully defining the relative duties of the respective parties at the crossing, and submitting the question of plaintiff’s contributory negligence in a manner rather favorable than otherwise to the defendant, the learned justice presiding at the trial went further, in one particular point, than justified by the law, in imposing a burden upon the defendant. He first gave to the jury a special prayer of the plaintiff, wherein they were told that, if the place was unusually dangerous, “ it was the duty of the railroad to have guarded and protected the crossing from collision or accident by the employment of watchmen or flagmen or other reasonable 'instrumentalitiesand if plaintiff was injured by reason thereof without contributory negligence on his part, he should recover, etc. He then referred to the evidence as to probable obstructions to the view, .the crossing of another railroad in the vicinity, and the numbers of people using the-crossing; and told the jury that, “it is for you, looking at all the evidence, to say whether that is such a crossing' as that, in the exercise of due care and prudence and regard for the people and property of this city, and of those who may be in the city and in that locality, the railroad ought to have some instrumentality there by which people would be warned of- danger either by way of some person being stationed there, or having signboards up, or by means of some other effectual instrumentality, whereby people might be warned of the dangerous nature of the crossing, so .that collision might be avoided. If you find that there should have been, in this particular locality, some such instrumentality used for the purpose of warning people who travel that way, then not to have furnished it or them would be negligence on the part of the defendant; and if you find that in that way, owing to the peculiar locality and arrangement of the shrubbery and the houses, and the trees and the crossing, and owing to the whole situation as developed by the evidence, it was so *312dangerous as to require care and prudence on the part of the defendant, to have caused it to furnish these instrumentalities, whatever in your judgment they ought to have been; and if you find from the evidence that they were not furnished, and that the accident resulted to the plaintiff in consequence of the want of such means and methods of protection as I have alluded to, then the defendant might be regarded as guilty of negligence in this case.”
The act of Congress incorporating the defendant and conferring its franchises limits the speed of cars to nine miles per hour, but makes no other regulations. Although the city of Washington is traversed by many lines of street railways, propelled by c.able, electricity, and other power, the Commissioners of the District have not undertaken to require them to have watchmen stationed at all, or any crossings.
As we have seen in the case of B. & P. Railroad Co., v. Golway, ante, p. 143, there may be exceptional cases when at the crossings of steam railways by public highways, it might be proper to submit to the finding of the jury, if any precautions in addition to those required by statute, including even the maintenance of a flagman or a gate, were necessary to prevent injuries to persons in proper use of the highways. But the conditions and considerations operating in the case of street railways are quite different, as have been pointed out above. In the case of steam railways, too, their right of way, or of preference at crossings, is generally conceded, whilst, as correctly given in charge to the jury in this case, at the request of the plaintiff, street railways can claim no such right of preference. To require signs at street crossings would serve no useful purpose. Plaintiff admitted that he was familiar with the crossing and the character of the cars. People who traverse the streets know that many of them are crossed and recrossed by street railways, and they know that ordinarily the cars may be expected at any moment and at short intervals. Though their operation is necessarily attended with danger, *313street railways are great public conveniences which could not well be dispensed with. To minimize those dangers they should be held to due and reasonable care in regulating the speed of their cars, and the skill and watchfulness of those in charge of them, and in sounding the bell or gong with which each car is provided.
These are precautions which common prudence and regard for public safety demand, and which the public have a right to expect. But extraordinary precautions, such as keeping flagmen at every, or at any particular crossing, are not to be imposed upon them at the option of a jury in a particular case. These must be left to the discretion and control of the law making power, or of the municipal authorities charged thereby with the duty of making all reasonable police regulations looking to the public safety and welfare. When these act, the requirement is defined and becomes fixed and invariable; it must be taken notice of and observed by all, the public and the railway companies alike, and the conduct of all may be governed by the reasonable expectation of its observance.
The general charge was sufficiently explicit in defining the care and the precautions which the defendant was bound to 'exercise, and the evidence was such as to require the question of the negligence of the defendant and the contributory negligence of the plaintiff to be submitted to the determination of the jury.
The giving of the additional charge set out above was an error which may have misled the jury, and for that reason the judgment must be reversed, with costs to the appellant, and the cause remanded for a new trial. It is so ordered.