Dinan v. Chicago & Milwaukee Electric Railway Co.

WiNsnow, C. J. We regard tbe evidence as entirely sufficient to sustain tbe findings of fact of tbe jury. No time will be spent in considering tbem. There is but one question arising on tbe trial which seems to us necessary to be treated, and that is tbe question whether tbe trial court erred in charging tbe jury on tbe eleventh question of tbe verdict relating to plaintiff’s contributory negligence. Upon this subject tbe court charged in substance that it is tbe duty of tbe ordinary traveler on a street to keep a vigilant lookout for approaching cars, but that where a person is lawfully performing work upon tbe street and tbe tracks of tbe street railway company with its knowledge, consent, or procurement, tbe relationship is different, and that such a person is not required to keep tbe same lookout as tbe traveler who unnecessarily drives along tbe track, but may assume that tbe warnings and precautions customarily used by tbe company will be given. In connection with this charge, full 'and careful instructions were given to the effect that tbe plaintiff was required to keep a lookout for approaching cars and exercise ordinary care under all tbe circumstances, and that if be was guilty of a slight want of ordinary care which proximately contributed to bis injury be must be found guilty of contributory negligence. There is no error in this. It is not only good law but good sense. A man who is engaged in work upon tbe highway cannot, if be performs bis duty, spend a large part of bis time in looking for tbe approach of street cars or other vehicles. In a busy street be would accomplish little if be did so. Of course be cannot let bis thoughts go wool gathering and expect all users of tbe highway to give place to him; be must [298] exercise some vigilance; be must keep tbat lookout for vehicles and cars which an ordinarily careful man similarly situated would keep; a man who is compelled to be in the street and to be giving attention to his work. Such care must manifestly be a lesser degree than the care required of a person who is on the highway for the purpose of travel alone and may come and go at will. This court has affirmed the principle in Turtenwald v. Wis. Lakes I. & C. Co. 121 Wis. 65, 98 N. W. 948, and other courts have adopted the same rule. Graves v. Portland R., L. & P. Co. 66 Oreg. 232, 134 Pac. 1; Lewis v. Binghamton R. Co. 35 App. Div. 12, 54 N. Y. Supp. 452. See 2 Thomp. Comm, on Neg. § 1463. There are decisions which seem to favor a contrary doctrine, but we decline to follow them. A motion for new trial on the ground of newly discovered evidence was denied by the trial court and the ruling is alleged as error. We have carefully considered this contention, but find no error. It is not deemed necessary to go into the matter at length. By the-Court. — Judgment affirmed.