#### Zucker, Respondent, vs. Johnson and others, Receivers, Appellants.

*April 10*

October *6, 1914.*

*Street railways: Personal injuries: Collision with vehicle: Contributory negligence: Instructions to jury.*

1. In an action for injuries resulting from a collision between plaintiff’s wagon and a street car, the evidence — tending to show, among other things, that plaintiff drove upon the track to avoid a gang of street cleaners or piles of dirt and that he was just leaving the track when the car overtook him and struck the hind wheel of the wagon — is *held*to sustain a finding by the jury that plaintiff was not guilty of contributory negligence.

2. It was not correct in such case to instruct the jury that, if plaintiff was in the act of removing from the track at the time of the injury, he had the right of precedence upon that portion of the street, and it was irrelevant to say that he had a right to rely upon the motorman to keep a proper lookout and to have his car under such control that he could, in the exercise of ordinary care, avoid a collision, but those errors were not in this case prejudicial; and other instructions relative to ordinary care on the part of the plaintiff, although lacking lucidity, were not misleading.

Appeal from a judgment of the circuit court for Milwaukee county: W. J. TubNER, Circuit Judge.

*Affirmed.*

Action against the receivers of the Chicago & Milwaukee *82Electric Railroad Company to recover damages for injury to tbe person of plaintiff and to bis wagon and borse, caused by a collision between tbe wagon and a street car operated by defendants.

Tbe special verdict found (1) tbe motorman of tbe defendant was not in tbe exercise of ordinary care in tbe operation of tbe car at tbe time it came in collision with plaintiff’s wagon; (2) such failure to exercise ordinary care was tbe proximate cause of tbe injury to plaintiff and bis property; (3) the motorman did not sound tbe bell at such distance from tbe wagon that tbe driver thereof in tbe exercise of ordinary care ought to have beard tbe same and avoided the collision; (4) be did not blow tbe whistle under similar circumstances. Question 6 was not answered. It related to tbe defendants’ version of tbe occurrence and under instruction was to be left unanswered in case tbe jury disbelieved that version; (I) no want of ordinary care on tbe part of tbe plaintiff proximately contributed to bis injury; (8) damages; (9) $983.

Eor tbe appellants there was a brief by *Edgar L.*Wood> attorney, and *Bull &*Johnson, of counsel, and oral argument by *Mr. Wood.*

Eor tbe respondent there was a brief by *Bubin & Zabel,.*and oral argument by *W. G. Zabel.*

Tbe following opinion was filed May 1, 1914:

TimugN, J.

It is contended that tbe uncontroverted evidence establishes a case of contributory negligence against tbe plaintiff. We may concede at once that upon defendants’ version of tbe facts this would be true. But that version of tbe occurrence is controverted by the evidence on tbe part of tbe plaintiff. Defendants’ evidence is subject to some weakness. Tbe motorman testified that when bis car was between five and ten feet from tbe wagon tbe plaintiff turned two feet nearer to tbe car track, that tbe motorman threw off the-*83power, reversed, applied tbe power again, and tbe car struck tbe left rear wheel of tbe wagon. Tbis would be quite a difficult feat unless tbe wagon bad traveled its length after being swung into tbe path of the car. Another witness for tbe defendant testified that tbe car struck tbe front wheel of tbe wagon. But aside from tbis witness, all witnesses for plaintiff or defendant agree that tbe collision was between tbe forward part of tbe car and tbe left or west bind wheel of tbe wagon. Tbe plaintiff’s story is tbat.be was driving north on tbe east or right-hand side of Grove street at a gait of about five miles per hour, and when be arrived about tbe middle of tbe block between tbe cross streets known as Bog-ers and Burnham streets be encountered a street-cleaning gang of ten or twelve workmen engaged in cleaning tbe street by scraping tbe surface accumulations into heaps. He then looked back and saw a car about a block and a half or two blocks behind and coming toward him. ITe further testifies: “Knew that I could make it in that time. It was not much to ride.” He turned on to tbe street railway track because be “knew that there was enough room for him to ride in tbe car track and turn out.” He could not tell bow fast tbe car was coming. He traveled upon or partly upon tbe car-track portion of tbe street for fifty or sixty feet in getting around tbis gang of workmen and these heaps of dirt, and then attempted to turn off tbe track to bis right, and was just leaving tbe track when tbe car overtook him and struck tbe left rear wheel of bis wagon, causing tbe injuries in question. Other evidence showed tbe ordinary and usual speed of tbe car to be twelve miles per hour. Tbis narrative is also subject to tbe weakness that if tbe distance which tbe plaintiff traveled was only sixty feet and be was going at a rate of five miles per hour and tbe car was at the stated distance behind bim and traveling at ordinary speed, it would not overtake bim before be left tbe car track. We understand, however, that tbis speed and these distances are only estimates. But they *84furnish a basis from which a jury, confronted with the established fact that the car did strike the left hind wheel of plaintiff’s wagon and cause damages, might arrive at the conclusion that the car when first observed by plaintiff was at such distance behind the plaintiff and moving at such usual and ordinary rate of speed that an ordinarily prudent person driving as the plaintiff was, might in the exercise of ordinary care attempt the slight detour necessary to avoid the street, cleaners or the piles of dirt. The case would be brought within the rule of *Tesch v. Milwaukee E. R. & L. Co.*108 Wis. 593, 84 N. W. 823, quoted from and approved in *Grimm v. Milwaukee E. R. & L. Co.*138 Wis. 44, 52, 119 N. W. 833; *Kowalkowski v. M. N. R. Co.*157 Wis. 473, 146 N. W. 801. .AA7e cannot declare that the jury was obliged to reject the plaintiff’s testimony on this point or unauthorized to draw reasonable inferences from all facts in evidence.

It is further contended that an instruction relative to the sixth question of-the special verdict was extremely confused and misleading. In defining the words “ordinary care” the court said in connection with such definition: “Now, if the plaintiff was in the situation not that I have described to you in a previous question, but was in the situation of going upon the tracks after going out of the tracks, then he must be in the exercise of ordinary care.” This instruction relates to defendants’ version of the occurrence which was rejected by the jury. There is nothing positively incorrect about it, but it lacks lucidity. AVe may readily concede that it did not materially enlighten the jury and we think it did not mislead them. An instruction relative to the seventh question, which, called for a finding upon the plaintiff’s contributory negligence, was as follows:

> “If you take the plaintiff’s theory that he was in the act of removing from the track at the time of the injury, then he had the right of precedence upon that portion of the street *85and to move from tbe track without unnecessary delay, and it was his duty to remove from the track without unnecessary delay, and it was the duty of the motorman to keep a proper lookout so as to know plaintiffs situation, and to have hi§ car under such control that he could, in the exercise of ordinary care, avoid the collision, and in the exercise of ordinary care so operate the car as to avoid the collision; and upon this conduct on the part of the motorman the plaintiff had the right to rely.”

This instruction is also quite confusing. No doubt these instructions were oral and extemporaneous and will probably appear very bad to the learned circuit judge when now called to his attention. It is very desirable that sufficient time to reduce instructions to writing be taken in the trial of cases, and many -'errors could be thus avoided. ’ It is not correct to-say that the plaintiff had the right of precedence upon that portion of the street, but it is correct to say that it was his duty to remove from the track without unnecessary delay, and that it was the duty of the motorman to keep a proper lookout and to have his car under such control that he could, in the exercise of ordinary care, avoid the collision. But it is quite irrelevant to say that the plaintiff had a right to rely on this conduct on the part of the motorman. The latter question was not in the case. We cannot approve of these instructions, but we are not convinced that the result was prejudicially affected thereby.

*By the Gourt.*— Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on October 6, 1914.