#### Pinz, by guardian *ad litem,*Appellant, vs. Milwaukee Electric Railway & Light Company, Respondent.

*January 16*

February *10, 1920.*

*Street railways: Failure of pedestrian to look for car: Evidence: Contributory negligence: Instructions: Negligence: Presumption of ordinary care by injured person.*

1. In an action to recover for injuries to a woman eighty-six years old who was struck by a street car while attempting to cross the street ahead of the car, the jury having found that the car was being run at a dangerous and unreasonable rate of speed, the testimony of an eye-witness of the accident is *held*to support a finding of the jury that plaintiff did, not look before entering the danger zone, as against a contention that the finding was contrary to the established physical facts.

2. Where there was evidence of want of care on the part of plaintiff, an instruction that she was presumed to have looked and listened before entering the danger zone, that she conducted herself as the greater mass of women of her age and infirmities would have conducted themselves under the same circumstances, and that she was presumed to exercise the care that women .of her age and infirmities would have exercised under the same circumstances, was properly refused, as not being a correct statement of the law applicable to the case.

3. In the absence of all evidence, a person injured is presumed to have been in the exercise of ordinary care; but such presumption does not obtain where there is credible evidence to the contrary.

Appeal from a judgment of the circuit court for Milwaukee county: Oscar M. Fritz, Circuit Judge.

*Affirmed.*

Personal injury. The plaij^iff, a woman eighty-six years of age, attemajgd to cfoss Vliet street in the city of Milwaukee ahead of an approaching street car. She was struck, injured, and brought this action in the *ciiM*court of Milwaukee county to recover damages. The jury found that the street car was beiñg run at a dangerous and unreasonable rate of speed; that the motorman was guilty of a want of ordinary care in the operation of his car; that the *12operation of the car at an unreasonable rate of speed, and the want of ordinary care on the part of the motorman, was the proximate cause of the injury; that the plaintiff was not guilty of contributory negligence; and that the plaintiff did not look before entering the zone of danger. After verdict the plaintiff moved the court to .change the answer to question 5 so that the verdict would find that the plaintiff did look before entering-the zone of danger, and for judgment on the verdict as so changed. The defendant moved for judgment upon the verdict. The defendant’s motion was granted. There was an appeal to the circuit court from the judgment of the civil court. On the appeal the judgment of the civil court was affirmed, and from the judgment of the circuit court this appeal is taken.

*Martin J. Brennan*of Milwaukee, for the appellant.

For the respondent there was a brief *by Van Dyke, Shaw, Muskat & Van Dyke,*and oral argument by *Ralph M-. Hoyt,*all of Milwaukee.

RoseNBerry, J.

Two questions are presented. The plaintiff claims, first, that th'e verdict of the jury, finding that the plaintiff did not look before entering the zone of danger, is contrary to the established physical facts; and second, that the trial court erred in refusing the plaintiff’s request to instruct the jury as follows:

> “You are instructed as to the fifth question of the special verdict that the plaintiff is presumed to have looked and listened before entering the zone of danger; that she conducted herself as the greate^ mass of women of her age, her infirmities, would have c6ád”¿ted themselves under the same circumstances; and that plaintiff"^ presumed to exercise' the care that women of her age and infirmities would have exerCjsed under the same circumstances,” citing *Whitty v. Oshkosh,*106 Wis. 87, 81 N. W. 992.

1. We have carefully examined the evidence and plaintiff’s argument in support of the first contention, and are of the opinión that the verdict of the jury is amply supported *13by the evidence and not contrary to the established physical facts.

2. The trial court did not err in refusing the requested instruction, because it is not a correct statement of the law applicable to the case. While it is true that in the absence of all evidence persons are presumed to have been in the exercise of ordinary care, such presumption does not obtain where there is, as in this case, credible evidence to the contrary. An eye-witness testified that plaintiff did not look. The verdict of the jury shows that the testimony of this witness was credible. The request, made as it was without qualifications, .was for that reason alone properly denied. The trial court properly submitted the matter to the jury upon the whole evidence as it stood.

*By the Court.*— Judgment affirmed.