#### Kowalkowski, Respondent, vs. Milwaukee Northern Railway Company, Appellant.

*March 20*—

June *17, 1914.*

*Street railways: Injury to person driving along traclc: Contributory' negligence: Question for jury.*

1. Ordinary care requires a person about to cross or drive upon a street railway track to look in both directions and listen ior approaching cars at a point where it is reasonably certain that such efforts will accomplish their purpose, his duty in this regard being identical with that of a person approaching the track of a steam railway.

2. It is the duty of a person traveling along a street railway track to give way in due season to an approaching car, whether earning from the front or the rear, and to exercise ordinary care not only to discover when a car is approaching but to turn off from the track in time to prevent a collision.

3. The question of ordinary care is generally a relative question, depending upon the facts surrounding each case.

4. On a dark winter evening, at a time when the track was clear in both directions, plaintiff, with a single horse and a wagon loaded with coal, drove upon and proceeded along defendant’s street railway track. He looked back about every half block, but saw no car coming until the last time. Then, seeing a car approaching from behind, he attempted to turn off from the track upon the rough unpaved highway, but the rear wheel of his wagon was struck and he was injured. The car had no headlight except a sixteen candle-power incandescent light with a reflector on the roof, and the night was gloomy, with snow flurries. There was evidence that the car was behind time and was running twenty miles or more per hour, that its gong was not rung or its speed slackened as it approached plaintiff’s wagon, and that no attempt was made to stop it until after the collision. *Meld,*that plaintiff was not guilty of contributory negligence as matter of law.

Appeal from a judgment of the circuit court for Milwaukee county: Byeon B. Bake, Judge.

*Affirmed.*

Action for personal injuries. The plaintiff, while driving a single horse and wagon westward on Atkinson avenue in the city of Milwaukee on the evening of January 13, 1912, at a *474few minutes before 6 o’clock, was run into from tbe rear by one of the defendant’s urban street cars, thrown from his wagon, and seriously injured. The plaintiff had a ton of coal in his wagon which he had procured at the so-called Gibson station on the Port Washington road, and was taking the same to his house on the corner of Nineteenth street and Atkinson avenue. He came from the north and reached Atkinson avenue on Eleventh street, which crosses Atkinson avenue nearly at right angles. Plaintiff testifies that he stopped before turning westward' on Atkinson avenue because he saw a car to the westward “at the loop on Twentieth and Atkinson avenue” coming eastward, and that he remained there until this car, which was an interurban car, passed him and went eastward; that after this car passed he turned westward on Atkinson avenue and drove on to the street-ear track, which at this point is a single track; that the night was cold, the highway unpaved, and the street so rough that it was difficult for his horse to obtain a footing anywhere except on the street-car track; that for this reason he continued to travel westward upon the street-car track; that he looked back from time to time to see whether any car was approaching from the rear; that he looked back at about Twelfth street and again at a point about half way between Twelfth and Thirteenth streets and saw no car; that he looked back at about Thirteenth street and saw a car, which, however, turned off towards Lindwurm Park before reaching him; that he looked back between Thirteenth and Fourteenth streets and saw no car; that as he reached Fourteenth street he looked around for his whip and saw a car coming; that he hollered all he could and turned his horse to the left, but was unable to get clear of the track, and the car struck the rear wheel of the wagon, wrecking it and throwing the plaintiff to the ground. It appears that both urban and interurban cars operate over the piece of track in question, the interurban cars being larger and carrying an arc headlight on the front dashboard, *475while the urban cars carry only a sixteen candle-power incandescent light “over the first roof of the car, pretty well to the front,” with a parabolic reflector; that the car in question was one of the urban cars. The motorman claims that he first saw plaintiff’s wagon when the car was from 60 to 100 feet distant; that he sounded the gong, reversed the current, and threw sand on the rail, but that the rail was slippery and the car could not be stopped in time and struck the right wheel of the wagon as it was on the south track. Plaintiff’s witnesses estimated the speed of the car at from eighteen to twenty-five miles an hour, while defendant’s witnesses estimated it at about ten miles an hour. The plaintiff testified that he heard no gong sounded, and one of the passengers on the car testified that the gong was not sounded. The car ran some distance after the crash, the estimates of the witnesses varying from 100 feet to nearly a block.

The jury returned a special verdict to the effect (1) that the defendant negligently operated the car; (2) that such negligence was the proximate cause of plaintiff’s injury; (3) that no want of ordinary care on plaintiff’s part proximately contributed to the injury; and (4) that plaintiff’s damages were $8,000. From judgment for the plaintiff on this verdict the defendant appeals.

For the appellant there were briefs by *Flanders, Botium, Fawsett & Bottum,*attorneys, and *James G. Flanders,*of counsel, and oral argument by *James G. Flanders.*

For the respondent there was a brief by *O'Connor, Schmitz, Wild & Gross,*and oral argument by *A. J. Schmitz*and *E. J. Gross.*

The following opinion was filed April 9, 1914:

"WiNsnow, C. J.

The appellant’s case is based on the proposition that the evidence shows contributory negligence on the part of the plaintiff as matter of law, and to this proposition we direct our attention.

*476The law is well settled in this state that ordinary care requires a person about to cross or drive on to a street railway track to look in both directions and listen for approaching cars at a point where it is reasonably certain that such efforts will accomplish their purpose. In this respect the duty ■of the traveler approaching a street railway track is identical with the duty of the traveler approaching the track of a steam railway. *Tesch v. Milwaukee E. R. & L. Co,*108 Wis. 593, 84 N. W. 823; *Cawley v. La Crosse City R. Co.*106 Wis. 239, 82 N. W. 197; *Grimm v. Milwaukee E. R. & L. Co.*138 Wis. 44, 119 N. W. 833. When, however, the question arises as to the duty of a person traveling upon the street lengthwise of the street railway track, it is plain that there can be no very close analogy between steam railroads operating cars upon their own right of way and street railroads operating cars upon the public street. The difference of situation necessarily creates different standards of conduct. The traveler has no right to travel upon the inclosed right of way, but he has a right to travel upon that part of the highway covered by the street railway track when it is not required for the passage of street cars in the performance of that duty which street-car companies assume to the public. From the very nature of the situation the citizen must defer to the street car when using this part of the public street. The street car is of great size, must travel at a considerable speed to perform its duties as a common carrier under modern conditions, necessarily acquires great momentum, cannot be momentarily stopped, and cannot turn out. The deference required of the traveler is not so much deference to the street-car company as it is deference by .one citizen to that very large number of his fellow-citizens who are being constantly transported by street cars, who cannot themselves control the movements of the cars, and whose right to speedy and safe transportation upon the vehicles of a common carrier must naturally be held to be paramount. *Watermolen v.**477*Fox River E. R. & P. Co.*110 Wis. 153, 85 N. W. 663. So it is manifestly the duty of tbe traveler who chooses to travel along that part of the street occupied by the street railway track to give way in due season to an approaching car, whether approaching from the front or the rear, and it follows necessarily that it is his duty to exercise ordinary care not only to discover when a car is approaching, but to turn off from the track in time to prevent a collision. The question here is whether the evidence conclusively shows that the plaintiff •failed to exercise this degree of care at the time of the accident, and this question is a reasonably close one. The question of ordinary care is generally a relative question, depending upon the facts surrounding each case. Eor this reason the citation of adjudicated cases is not very helpful, as there is always a difference in the facts. There is nothing in the present case to indicate that the plaintiff was negligent in going on to the track in the first instance. If his testimony is to be believed, and there is nothing to shake it on this point, he waited until a car from the west passed him and went eastward, so that the track was clear in both directions before he ventured on the track. The night was dark, the highway (except where the track was laid) so rough as to make traveling hard, if not positively dangerous. Naturally he chose the part covered by the track and proceeded westward. It was his duty unquestionably to make frequent observation to the rear to see whether a car was following him. The blocks on Atkinson avenue were about 350 feet long. The plaintiff claims that he looked back about every half block from 'Twelfth to Fourteenth streets, and saw no car coming until his last observation. Had it been daylight at the time, this evidence would unquestionably have to be rejected as incredible, for the track was clear and no sufficient difference existed in the grade of the track to affect the ability to see a car approaching from the rear. It is contended that the same •conclusion must be reached notwithstanding the fact that it *478was dark, because it is said that the plaintiff must have seen the headlight of the car which struck him and which had turned on to Atkinson avenue at Sixth street. Had this car borne an arc headlight on the dashboard, such as the interurban cars bore, this contention would be very difficult, if not impossible, to meet. It bore, however, only a sixteen candlepower incandescent light with a reflector on the forward part of the roof. It may well be that this comparatively feeble light in the position in which it was would not necessarily attract the attention of a man taking occasional glances backward, or if seen would not be identified as the light of an approaching car. The motorman testified that the night was gloomy, that there had been snow flurries during the day and were snow flurries that night. If the plaintiff’s testimony is to be believed, he saw the car the last time he looked around and immediately proceeded to turn his horse to the left into the highway proper. This must under all the circumstances, have been a slow operation. The wagon contained a ton of coal beside the driver and the horse was compelled to make his way into and over a rough and hummocky country road. The movement had been so far accomplished that the car-struck only the last wheel of the wagon as it was clearing the south track. The time taken in this operation must have-been considerable. It seems to demonstrate that the car (if moving at anywhere near the rate testified to by the plaintiff’s witnesses) must have been a considerable distance away when the plaintiff looked around and saw it approaching. It appeared by the evidence of the motorman that the car was about ten minutes behind time. While the motorman denied that he was attempting to make up time, there was sufficient evidence to justify the jury in concluding that the-car was going at a speed of twenty miles or more an hour at the time, that the gong was not rung nor the speed slackened as the car approached the plaintiff’s wagon, — in fact that no attempt was made to stop it until the wagon had been struck. *479Of course, tbe failure of tbe motorman to perform bis duty does not excuse a traveler from failure to perform bis duty, *i. e.*to exercise ordinary care. However, tbe fact that signals are required to be given and normally are given as a car approaches from tbe rear is a fact wbicb is entitled to be consi diered when tbe mind is endeavoring to determine what tbe ordinary man would do under tbe circumstances which surrounded tbe plaintiff. In other words, it is one of tbe •circumstances.

In view of all tbe facts, and especially in view of tbe conclusion reached by tbe trial judge to tbe effect that there was sufficient evidence to support tbe jury’s findings, we feel that we cannot say, as matter of law, that tbe plaintiff failed to •exercise ordinary care.

*By the Gourt.*— Judgment affirmed.

A motion for a rehearing was denied, with $25 costs, on •June 17, 1914.