Opinion,
Me. Justice Steeeett :
This was clearly a case for the jury on the controlling questions of fact, whether the death of Mrs. Jones was the result of the railroad company’s negligence, and if so, whether her own negligence contributed thereto. These and cognate questions of fact were fairly submitted to the jury, in a clear and impartial charge, in which the principles of law applicable to every feature of the case are accurately stated. The jury, as the evidence fully warranted them in doing, found in favor of the plaintiff below and against the defendant company. It follows that the learned judge was right in refusing to charge as requested by the company, defendant below, that “ under all the evidence, the plaintiff cannot recover,” and also in refus*314ing to affirm its third, fourth and fifth points, wherein he was, in substance, requested to withdraw the case from the jury on the ground that the deceased was guilty of contributory negligence. In answering those points in the negative, he very properly added: “ Of course we do not say that you are not to consider the evidence which is referred to in the points; we simply say that the facts are for your consideration, and it is not for the court to declare, as matter of law, that these constitute contributory negligence.” It would be well if all trial judges were thus careful not to usurp the province of the jury and undertake to pass upon questions of fact. Negligence is the absence of care according to the circumstances; and what constitutes negligence when the standard shifts, not according to any certain rule, depends upon the facts and circumstances developed at the trial, and cannot be determined by the court, but must be submitted to the jury: Turnpike Co. v. Railroad Co., 54 Pa. 345; Railroad Co. v. Stinger, 78 Pa. 219; Penna. R. Co. v. Coon, 111 Pa. 430; Schum v. Penna. R. Co., 107 Pa. 8; Taylor v. Canal Co., 113 Pa. 162; Lee v. Woolsey, 109 Pa. 124; Longenecker v. Penna. R. Co., 105 Pa. 329; Neslie v. Passenger Ry. Co., 113 Pa. 300. There is a constant tendency to ignore the time-honored rule recognized in these and many of the earlier cases. When the facts of a case are admitted or undisputed, it is of course the duty of the court to pronounce the law arising thereon. The second to fifth specifications inclusive, are not sustained.
The first and only remaining specification presents a different question. The subject of complaint is the refusal of the learned judge to affirm the following point submitted by defendant below:
1. “ The evidence of plaintiff does not show that he suffered any pecuniary loss by the death of his wife, and therefore there is nothing in the case to warrant the jury in finding that, plaintiff suffered substantial damages or loss, and the verdict, if for the plaintiff, should be in a nominal sum.”
Evidence was introduced by plaintiff below to prove that the deceased, Mrs. Jones, was his wife; that she was sixty-six years of age, and had always been a healthy woman, etc. Presuming that in the absence of any rebutting evidence, the jury might and doubtless would infer that she was an ordinarily *315industrious and useful wife, capable of discharging properly the duties of her position, and that consequently her death was a pecuniary loss to him, plaintiff below did not undertake to prove that she possessed any speciaEy or exceptionally good qualities, as with propriety he might have done if the subject of his loss had been a horse or other animal. Nor was it either necessary or proper that he should do so. The court was clearly right in refusing to charge as requested.
Judgment affirmed.