#### Fosnes, Appellant, vs. Duluth Street Railway Company, Respondent.

*October 6*

October *26, 1909.*

*Street railways: Injury to passenger alighting -from moving car: Contributory negligence: Presumption as to intelligence.*

1. Although a man had recently come to this country and did not speak English it will he presumed that he was a man of ordinary intelligence.

2. It was, as matter of law, negligence for a man of full age and ordinary intelligence, confronted with no exigency and laboring under no fright or excitement, to attempt to alight from a street car which to his knowledge was moving at the rate oí six miles an hour, although the conductor had negligently failed to stop the car as requested and the passenger — who had recently come to this country, and was unable to speak English, and was inexperienced in street railway travel — had at other times seen passengers alight from moving cars, and concluded that he was required to do so, and supposed it was perfectly safe.

Appeal from a judgment of tbe superior court of Douglas county: Chables Smiith, Judge.

*Affirmed.*

The cause was submitted for the appellant on the brief of *Victor Liriley,*and for the respondent on that of *Franlc*A. *Boss.*

*456TimuiN, J.

In this case an objection to tbe reception of any evidence under tbe complaint was sustained upon tbe ground tbat no cause of action was stated therein. Tbe plaintiff did not ask leave to amend, and judgment was granted dismissing tbe complaint. No error is assigned for failure to grant leave to amend.

It appeared by the complaint tbat the plaintiff, a passenger upon a street railway car, requested tbe conductor to let him off at a designated street, and tbe conductor knew tbe wish of tbe passenger to get off at tbat street, but carelessly, negligently, and wantonly failed and neglected to stop tbe car at tbat street without explanation to tbe passenger, and tbe passenger then attempted to get off tbe car a.t this street while tbe car was moving at tbe rate of six miles an hour, and in so doing was accidentally thrown to tbe ground and injured. This presents a case of negligence on tbe part of the defendant and contributory negligence on tbe part of tbe plaintiff. Six miles per hour must be considered a considerable speed, and indeed a high rate of speed, for tbe purpose of alighting from a moving street car. Tbe ordinary inference of contributory negligence from such attempt recognized in *Champane v. La Crosse C. R. Co.*121 Wis. 554, 99 N. W. 334, and *Hardy v. Milwaukee St. R. Co.*89 Wis. 183, 61 N. W. 771, is apparently sought to be overcome by tbe pleader by tbe following additional averments in *the*complaint: The passenger recently arrived in tbe United States from Norway, did not speak the English language, was inexperienced in street railway travel, and had seen other passengers at other previous times alight from the cars of tbe defendant while simb cars were in motion at street crossings; and concluded tbat he was required to get off tbe car while it was in motion, and supposed it was perfectly safe for him to get off tbe car, although it was moving at tbe rate of six miles an hour.

Assuming in support of tbe complaint tbat tbe conductor understood tbe language of plaintiff, tbat plaintiff knew he was approaching bis intended place of alighting, that this was *457a proper and usual place at which to stop the car, and that the “other previous times” when he had seen passengers alighting while the cars were in motion were sufficiently recent and sufficiently numerous to induce him to believe this was the American way, but not sufficiently numerous to remove his inexperience in street railway travel, still we mpst assume that there was no urgency beyond the risk of his being carried a square or thereabouts past his destination. Notwithstanding he did not possess the felicity of having lived long in this country, or of speaking the English language, he must be considered a man of ordinary intelligence. *Rahles v. J. Thompson & Sons Mfg. Co.*137 Wis. 506, 118 N. W. 350, 119 N. W. 289; *Johanson v. Webster Mfg. Co.*139 Wis. 181, 120 N. W. 832. While it cannot be said as matter of law that in all cases alighting from a moving street car constitutes contributory negligence, yet this may justly be said in a case where the party alighting is a man of full age and ordinary intelligence laboring under no fright or excitement, confronted with" no exigency, and the car is to his knowledge moving at the rate of six miles an hour. It follows that the judgment of the superior court should be affirmed.

*By the Court.*— The judgment of the superior court is affirmed.