*412Opinion,

We have before us two assignments of error for our consideration : the first to the court’s answer to one of the defendant’s points, and the other to the charge. The defendant requested the court to rule that “ if the jury believe that at the time of the alleged accident, the defendant’s driver was traveling in an ordinary manner, the defendant is not liable for an injury resulting from the use of the public street.” This request was refused. It is also alleged that the charge of the court was inadequate in this, that it did not refer to the facts proved at the trial, and did not properly direct the attention of the jury to the evidence tending to establish contributory negligence on part of the plaintiff below.

We are of the opinion that neither of these assignments can be sustained. The first, because it assumes the very point in controversy. The question was, Was the driver of the beer wagon traveling over the public crossing in an ordinary manner ? — that is, with the ordinary care which was requisite when passing a point such as that where the accident happened. Common sense will teach any person of ordinary mental calibre, that what is ordinary care must depend largely upon circumstances. Trotting a team of horses at a “fast rate for a beer wagon,” may be well enough along the open street, whilst on the other hand, it may be gross carelessness when passing a crossing where foot passengers are constantly to be expected, and among them many old people and children. As the learned judge, before whom this case was tried, well said, under such circumstances both parties are held to ordinary care, and the careless party must suffer the consequences resulting from his own carelessness.

Here was a place where both parties must be on the lookout ; the one for passing teams, and the other for foot passengers. Both have the, right of way, and both must be equally cautious. How then, is it possible to apply the doctrine found in Waters v. Wing, 59 Pa. 211, to the contention in hand? The accident in that case did not occur- at a crossing, but on the open road. The plaintiff’s son, on horseback, was approaching the defendant, who was driving his buggy along the highway, which was abundantly wide for the safe passage of both, and the former ran his horse so hard against one of *413the shafts of the buggy as to instantly kill it. Thus, whilst the rule cited was altogether proper for the case to which it was applied, it would be altogether improper for the case in hand. Nor are the cases of Goshorn v. Smith, 92 Pa. 435, and Baker v. Fehr, 97 Pa. 70, more in point than the one cited, for in neither did the accident happen through the negligence of the defendant. In the one, the plaintiff, unexpectedly to the driver of the wagon, by which he was injured, moved suddenly in the way of the coming team, and in such a manner that the defendant could neither anticipate nor guard against the accident. In the other, Fehr, the deceased, was struck and killed by a passing ice wagon. He had just got off the front platform of a street car, whilst the wagon was passing; several persons endeavored to warn him of his danger, and the driver did what he could to stop his mules, but Fehr either did not hear, or did not heed the warnings, and backed or walked directly against one of the mules, and was killed. To discover the analogy between these cases, and the case under discussion, is beyond our power; hence we conclude that it does not exist. Here is an accident at a public crossing, where both team and foot passenger had the right of way, and where both were required to use care. Who, then, was negligent, if either? was the natural and material question, and the solution thereof was clearly for the jury, not for the court.

Nor can we discover any defect such as that complained of in the learned judge’s charge. It is true, he does not comment specially on the evidence, and calls attention oidy to such of it as indicates the position of the wagon when the witnesses first saw it. But the testimony was neither complex nor voluminous; therefore, particular reference to it was unnecessary. The attention, however, of the jury was very clearly called to the law governing the case. The plaintiff must establish the fact of negligence on part of the defendant’s driver; if both parties were in fault, the verdict must be for the defendant ; they must be satisfied that there was negligence by the one party alone. This was surely so plain that the ordinary juryman could not fail to understand it, or if he did so fail, it was not the fault of the court.

The judgment is affirmed.