#### Klokow, Respondent, vs. Harbaugh, Appellant.

*October 25*

November *13, 1917.*

*Negligence: Injury to person crossing street: Automobiles: Excessive speed: Contributory negligence: Questions for jury: Instructions to jury.*

1. The “look and listen” doctrine which is applied to persons approaching a railway track is not applicable to persons who • are using a city street on which ordinary street traffic only is going on.

2. As between the drivers of ordinary vehicles . and a pedestrian crossing a city street the latter is required only to exercise ordinary care, and this does not impose upon him the duty of being constantly on the lookout.

3. What constitutes ordinary care in such a case is generally, though not always, a question for the jury.

4. In an action for injuries to a person who, while crossing a street from the curb to a street car, was struck by an automobile running at high speed, there being no evidence that he actually observed or that he could have seen that the automobile was approaching at a speed which would make his crossing dangerous, it was proper to instruct the jury in effect that if at the time a pedestrian leaves the curb he observes that the street is clear and that there are no vehicles thereon within a distance which would be covered by a vehicle going at a lawful speed, he may proceed on the assumption that all vehicles not within said distance will be operated at a lawful speed.

6. It may well be, however, that if a pedestrian actually sees that a vehicle is approaching at a rate of speed which would make his crossing dangerous, he is not entitled to take the chances.

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

*Affirmed.*

The plaintiff while crossing the street to board a street car was struck by the defendant’s automobile and seriously injured and has obtained a judgment for damages from which the defendant appeals. The facts in brief are these: The accident occurred on Sixteenth-street viaduct in Milwaukee, which runs due north and south over the Menomonee Valley and has a double line of street railway tracks upon *263it. At about 7:30 p. m. December 19, 1915, tbe plaintiff, a man about forty-eight years of age, ascended tbe steps leading from Park street in tbe valley- to tbe roadway of tbe viaduct, a distance of about twenty feet, with a number of other men wbo like bimself bad just quit work in a shop and were going borne. He proposed to take a nortli-bound street car on tbe viaduct. As be reached tbe top of tbe viaduct on tbe west side and stepped on tbe west sidewalk be saw a north-bound street car standing on tbe easterly track of tbe roadway directly opposite him. He crossed the sidewalk, ten feet in width, and then started to cross tbe roadway, following a number of bis fellow workmen. Plaintiff testifies that be looked both north and south while on tbe sidewalk and that be looked north just as be stepped from sidewalk to roadway, but saw nothing coming from either direction. He reached or nearly reached tbe first rail of tbe west track, and was there struck by tbe defendant’s automobile going rapidly southward, driven by tbe defendant bimself. There was an arc street lamp burning about ninety feet north of tbe spot. Tbe defendant testifies that bis automobile was straddling tbe west track. Tbe plaintiff did not see tbe automobile before be was struck, nor did tbe defendant see tbe plaintiff.

Tbe jury returned a special verdict by which they found that (1) tbe automobile bad a lighted lamp on tbe front which gave a reasonably bright light in tbe direction in which it was going; (2) it was going at a speed exceeding-fifteen miles an hour; (3) tbe speed was a proximate cause of plaintiff’s injury; (4) tbe defendant failed to exercise ordinary care to ascertain whether any person was crossing tbe street in the course of tbe machine; (5) such failure was a proximate cause of tbe injury; (6) defendant failed to use ordinary care to cheek tbe speed of bis automobile; (7) said failure was a proximate cause of tbe injury; (8) defendant failed to exercise ordinary care in tbe operation of *264bis' automobile; (9) said failure was a proximate cause of tbe injury; (10) plaintiff in tbe exercise of ordinary care ought not to bave seen tbe automobile in time to bave avoided tbe collision; (11) no want of care on plaintiff’s part contributed to produce bis injury; (12) be sustained damages to tbe amount of $7,580. Tbe trial court, deeming tbe damages allowed too large, gave tbe plaintiff tbe option to remit all over $5,000, wbicb being done judgment was entered for tbe plaintiff for $5,000 and costs.

Ror tbe appellant there was a brief by *Alexander &*Burlce, attorneys, and *William, E.*Burlce, of counsel, all of Milwaukee, and oral argument by *William E. Burlce.*

*Henry W. Stark*of Milwaukee, for tbe respondent.

WiNsnow, C. J.

Tbe appellant concedes that there was sufficient evidence to justify tbe finding that be was negligent and tbe concession seems not improvidently made. In our- judgment bis conduct nearly approached recklessness. He makes, however, two contentions: (1) that tbe plaintiff was guilty of contributory negligence as a matter of law, and (2) that erroneous instructions were given to tbe jury. These will be briefly considered.

1. Tbe argument on tbe first contention is in substance this: Tbe headlight of tbe automobile was plainly visible; it was plaintiff’s duty to look for it; either be looked or be did not look; if be looked be must bave seen it, and was negligent in attempting to cross tbe street in front of tbe machine ; if be did not look that fact itself was negligence; in either case bis own negligence proximately contributed to bis injury.

Tbe argument goes too far. It seeks to extend the “look and listen” doctrine, wbicb is applied to persons approaching a railway track, to persons who are using a city street on which ordinary street traffic only is going on. This would prevent a pedestrian from ever crossing a busy street. It *265would compel bim to remain standing with reluctant feet where the sidewalk and the roadway meet as long as there might be a ‘vehicle in sight. As between pedestrians and the drivers of ordinary vehicles, as well as between the drivers of such vehicles themselves, the law simply requires the ■exercise of ordinary care, *i. e.*the care which most people of ordinary prudence usually exercise under similar circumstances, and this is generally, though not always, a question for the jury. *Ehnert v. Mews,*151 Wis. 425, 138 N. W. 998.

It is clear that the defendant’s automobile was approaching at high speed. The plaintiff testifies that he looked northward just as he was stepping off the sidewalk and saw nothing. This is not incredible. He was following a number of men crossing the street to board the same car. He walked nearly or quite twelve feet before he was struck. He was intent on reaching the car, and he doubtless did not expect that any automobile driver would run past a standing street car which was receiving passengers with such speed. It is well said by the supreme court of Massachusetts in a similar case, “the usual rule of ordinary care does not impose upon them” (travelers upon highways) “the burden of being ■constantly on the lookout to see if their path is free from dangerous defects or in a state of apprehension of personal injury from other travelers. The traveler not only has a right to presume that the way is reasonably fitted for his use, but also that those who may be lawfully using it with himself will exercise a proper degree of care.” *Hennessey v. Taylor,*189 Mass. 583, 76 N. E. 224. See, also, *Arseneau v. Sweet,*106 Minn. 257, 119 N. W. 46; *Ouellette v. Superior M. & M. Works,*157 Wis. 531, 147 N. W. 1014.

2. The instructions claimed to have been erroneous are as follows:

> “You are further instructed that a' pedestrian, after making observation and ascertaining that there were no automo*266biles or other vehicles in his vicinity or dangerously near, may proceed to cross a city thoroughfare.”

> “If at the time a pedestrian leaves the curb be observes the street is clear and that there are no vehicles on the street for a distance greater than that which would be covered by a vehicle operating at a lawful rate of speed in order to reach the pedestrian’s line of operation, he may proceed on the assumption that all vehicles not within such distance will be operated at a lawful rate of speed.”

In view of the principles already laid down in this opinion it seems clear that these instructions were correct. Pedestrians act on these assumptions every day. It may well be that if a pedestrian actually sees that a vehicle is approaching at a rate of speed which would make his crossing dangerous he is not entitled to take the chances. But there was no evidence in the present case that the plaintiff actually did observe that the defendant’s car was approaching at a high rate of speed or that he could have observed it under the circumstances. We find no error in the instructions.

*By the Court.*— Judgment affirmed.