Opinion by

Mary B. Christian, aged over eighty years, was injured by a team of the defendant company, at the intersection of Thirteenth and Walnut streets in Philadelphia. The old lady was going east along the south side of Walnut street, and when at the west *323curb of Thirteenth street, stopped to allow a street car to pass north; immediately behind the car, on the tracks, a number of wagons were going in the same direction. Between the line of wagons and the eastern curb of Thirteenth street, in what is called a cart or wagon way, was the defendant’s wagon, going-north.

When the street car stopped, Miss Christian stepped from the curb to cross Thirteenth street; passed on the crossing between the rear of the car and the wagon following it, and when in the ■act of passing from the car rails to the eastern side of Thirteenth street, was struck by the pole of the wagon and sustained injuries, which have been measured in a verdict of $728.

Miss Christian died from other causes prior to the trial, and plaintiff’s proof was adduced through a disinterested eye witness, who detailed the facts producing the injury, and after the accident expostulated with the driver for driving at such a rate of speed in a crowded part of the city as he had morning after morning been doing, and received in reply the driver’s idea of right and duty, “ that people had no business to go across when wagons were going across, that he had a perfect right to drive as he wished, and did not care for anybody at all.”

The driver was called by the defendant and testified that at the time of the accident, three covered wagons and a couple without covers followed the car; that he saw Miss Christian step down from the curb stone, but thought she intended to get on the car; that he was driving at a jog trot and didn’t stop, and “ saw her umbrella coming between the car and the covered wagon and halloed ‘look out there.’ I was about ten feet away .from the crossing, and the brake wasn’t such an extra good brake at the time, and I first put it down as far as I could. I stopped the team and knocked her down.”

Defendant submitted as points, “There is no eAddence of defendant’s negligence in this case, as ought reasonably to satisfy you thereof, and therefore I instruct you upon the whole case, your verdict should be for the defendant.” And “ Under all the evidence in the case the verdict must be for the defendant,” which were refused by the learned trial judge, and in the general charge the jury were told, “ By negligence is meant the failure to perform the duty which the occasion requires. Let me say to you, that there is a joint duty upon the driver of *324the wagon and the pedestrian upon the street; that as the one attempts to cross a highway, and the other drives near the flagstone, which is the usual and ordinary place for people to cross, it is the duty of both of them to remember that cars and wagons may be going up or down the street — the driver to remember that pedestrians maybe there crossing the street. I do not say to you as a matter of law that if she saw a wagon or car coming, she could not cross, because in these days, in many parts of the city if that rule were to be enforced, a person could never cross; but you are to say whether if she had looked, she would have seen a condition of affairs to justify a prudent person in crossing or attempting to cross that street. If such was the condition, then she was not negligent in attempting to cross.” “ Further, if a pedestrian attempts to cross a street and gets part way across, and is stopped by a block of cars or wagons, and that block is removed, and there is again an opportunity to cross, they must again observe whether the condition has changed, or whether it is safe that they should go on. And by safe, I do not mean absolutely safe from all injury, but I mean whether it is safe in the ordinary sen'se of that word, — ■ whether a prudent and sensible person would be justified in attempting to cross a highway at a public crossing. It was the duty of the driver to approach the street crossing, recognizing the fact that people might attempt to cross at that street, and therefore it was his duty to have his team in such a condition, that if the occasion required he would be able to stop it. If you find that this accident happened as a result of both people being negligent, that is neither nor both sides did not do what they ought to have done, as I have defined it to you, then there can be no recovery. The law is that if there was joint negligence on the part of the plaintiff and defendant, there can be no recovery. There can be no verdict for the plaintiff except you find as a fact from the evidence, that the accident or the injury was caused by the negligence of the defendant alone.” The foregoing is quoted as a correct declaration of the law. When Miss Christian stopped and looked- at the western curb of 13th street, she saw in front of her the crossing she intended to use, free for pedestrians, with a covered wagon halted south of it, and behind that wagon a number of others in the car tracks. She acted on the invitation of the driver of the cov*325ered wagon to occupy the crossing, and did so in a careful, prudent manner. She could not see the ice wagon until she had passed over the car track. At this point it would be more dangerous for her to return than advance, as the ice wagon was ten feet distant. Her effort was natural and the right thing to do. It was an emergency and she acted with prudence. The driver of the ice wagon saw the car stop, and assumed that she got on the car. There was more reason for him to think she would pass on across 13th street, as the driver on the covered wagon on the car track had not started to occupy the crossing. Instead of approaching the crossing with care until he could see whether this old lady was on the street or not, he recklessly kept his unwieldy team at a jog trot with knowledge of the defective brake, and was the sole cause of the injury; acting out the thought expressed to the person protesting against his conduct at the time, — “ he had a perfect right to drive as he wished, and did not care for anybody at all.”

The case was carefully tried, the facts properly submitted, and the law correctly stated to the jury.

The judgment is affirmed.