Mr. Justice Gordon
delivered the opinion of the court, January 81st 1881.
Jacob P. Boyer, to recover damages for the loss of whose life this action has been brought by his widow and children, was, on the 6th day of March 1877, a passenger on a car of the Thirteenth and Fifteenth Streets Passenger Railway Company, and, as this car was moving across the tracks of the Philadelphia and Reading Railroad, it was struck by a passing locomotive; the result was the wreck of the car and the loss of two lives, that of Boyer being one of them.
The success of this action depends upon the establishment of two assumptions: (1.) That the death of Boyer resulted directly from the carelessness of the defendant’s servants; (2.) That the person in charge of the street car was chargeable with no negligence. It is only on this hypothesis that this suit can be maintained, for the rule is, that, where a passenger on a carrier vehicle is injured by a collision resulting from the mutual negligence of those in charge of it and another party, the carrier alone must answer for the injury: Lockhart v. Lichtenthaler, 10 Wright 151. On this theory the case was tried, and the principal point on which it turned was the question, whether the driver of the horse-car was or was not guilty of contributory negligence. This, of course, was exclusively for the jury, and it was error for the court to assume as true any fact upon which that body had to pass': Elkins v. McKean, 29 P. F. Smith 493. When, therefore, in answer to the plaintiff’s third point, asking instruction, “ that it *101was the duty of the driver of the passenger-car to stop before reaching the railroad, and look and listen for approaching trains, and, if the jury believe from the evidence he failed to do so, the plaintiff cannot recover, the court said: “ In view of the testimony that the flagman beckoned the driver to come on, this point is declined;” the rule as above stated was violated, for the court assumed as true, the very fact of all others upon which the case turned, since the only possible excuse for the driver for his neglect in not stopping ills car was the fact, if fact it was, that the flagman did beckon liim to cross the track. His duty to the passengers under his care was of the highest order, whilst that of the flagman as an employe of the railroad company was but secondary. He was bound to but ordinary care. The learned judge, however, seems to have inverted this order, for he says: “ The highest degree of caro, responsibility, vigilance and observation, rested upon the flagman, that could possibly he exercised by a man possessing care, vigilance and observation, under the same circumstances.” Had he applied this language to the driver of the horse-car, it would have been unexceptionable, but to apply it to the flagman was erroneous. It is true that that care, called ordinary care, must vary according to circumstances. What would be ordinary care in handling building-sand would be gross negligence in handling gunpowder; so, the care to be exercised in running a locomotive through a crowded city is something very different from that required'in driving the same kind of vehicle through the open country ; nevertheless, in both cases the care required is that only which a man of ordinary prudence would exercise under like circumstances. All this, the court might and ought to have told the jury. But it had no right to impose upon the company the duty of extraordinary care; that was the obligation resting upon the driver of the street-car, and upon him alone. From what has been said, it follows that the defendant's second point should have been affirmed without qualification, except, perhaps, to explain what ordinary care under the circumstances would be.
Furthermore, the learned judge erred in the following instruction : “ If you find, however, from the evidence before you in its entirety, that there was no negligence on the part of the Thirteenth and Fifteenth Streets Railway Company, then you have no trouble, and should, without a moment’s hesitation, reach the conclusion that it is your duty to find against the defendants.’
Here, again, is an assumption in which the court ought not to have indulged. From the evidence such a conclusion might possibly follow, but it was for the jury to draw it, not the court.
Again, the court said: “If the story of the driver is true, then he had no signal. If the story of Spencer, the colored man, is true, then the flagman on whom as great a responsibility as can rest upon any human being rested, was guilty *102of the grossest negligence.” But if the driver had no signal; if the flagman, as the driver himself says, came sauntering out of his box with his flag rolled up, under his arm, giving no heed to the railroad or what was upon it, what, under such circumstances, was the driver’s duty ? Under his care was the safety of his passengers; upon him rested the superior duty. Surely he ought to have stopped, looked for himself, or asked the flagman so to do; and this the more so, as Spencer was doing all in his jjower to warn him of the coming danger. The fact is, resting the case wholly upon his own and Spencer’s testimony, the driver did not exercise that care which, under the circumstances, was required of him. He had the lives of five men under his charge. B o was approaching a place of known danger. Had he stopped for one moment, he would have heard the noise of the approaching train. Spencer was directly in front of him, shouting and gesticulating in order to induce him to stop, and, instead of heeding this warning, with a curse he orders Spencer out of the way, and drives on. Now, suppose the flagman did beckon him on; tell him to go on: what was his duty as a prudent man? How could he help knowing that a train was coming ? He was not only warned of the fact, but, had he used his eyes, he might have seen it. It is, therefore, well nigh certain that his attempt to cross the tracks at that time, even under the supposition that the flagman signalled him so to do, was the result either of criminal carelessness or gross stupidity. One man told him to stop, another to go on; was he not to pause and judge between them, by the sure witness of his eyesight ? Surely this is a proposition of easy solution, and one, had it been properly submitted, that ought not to have given the jury much trouble. Again, the answer to the defendant’s fourth point was wrong, because it assumes the fact, as in the answer to the third point, that the flagman actually did beckon the driver on. The court might have refused this point. It was not necessary for the driver to cross the tracks in advance of his car. This" would have been proper had there been a conductor in charge of this vehicle, but as there was only a driver, this could not be done. Had he stopped, where he could have had a proper view of the road, and looked and listened, he would have discharged his whole duty. This point embodies the city ordinance, regulating the passage of railroad tracks by street-cars; an excellent regulation, and one that should be strictly enforced; but,, as we have said in the case of the Railroad Co. v. Ervin, 36 Leg. Int. 244, a municipal ordinance creates no new liability in favor of one injured by the negligence of another; hence, had the driver of the car observed the proper precautions, though they might not have conformed strictly to the directions of the ordinance, that would have been sufficient to have thrown the responsibility of the accident on the defendant, if its servants were negligent; never*103theless, the court, having undertaken to answer this point, should have done so in a proper manner, and not by an assumption of the prerogative of the jury.
We do not deem it proper now to discuss the exception to the entry of judgment in excess of §5000, the limit prescribed by the Act of 1868. It does not appear that the Philadelphia and Reading Railroad Company ever formally accepted the provisions of that act so as to make them part of its charter. Under such circumstances, whether the act applies at all to non-aceepting companies, is an important question, and a still more important question is, admitting it thus to apply as a general law, though not part of the company’s charter, what effect has the Constitution of 1874 upon the statute by way of repeal ? Should the case ever come before us again, which is not likely, it may be presented in a better shape for the discussion of these questions, but for the present we pass them.
The judgment is reversed, and a new venire is ordered.