delivered the opinion of the court.
There being no teams or vehicles in the street and nothing to prevent the driving by appellee in the west-bound track or in the, street west of the west-bound track, it appears extraordinary that having seen an electric car proceeding northward as he entered Wabansia avenue appellant should have continued to drive in the track along which he knew an electric car was proceeding without once looking back to see how near it was to him; and it seems most extraordinary that his brother, who, standing outside the wagon upon its steps and partially facing toward the south so that he could easily see the car, should not, as it was proceeding with great rapidity toward the wagon, have given any warning to appellee or to the car until it was, as he says, within fifty or sixty feet of the wagon. Other of appellee’s witnesses testified that the car was proceeding northward as fast as electric cars go. Whether, under the circumstances, appellee exercised ordinary care in driving, as he says he did, astride the east rail of appellant’s north-bound track, all the while pulling-toward the west, so that at the time of the collision his» wagon was nearly tracking, without looking back or endeavoring to ascertain as his horse walked along how near to him the car was, is a question of fact.
Appellant asked that the following instruction be given;
“ If the jury believe from the evidence that ordinary care on the part of the plaintiff for his own safety, under all the facts and circumstances in evidence, required him, before driving upon or attempting to cross defendant’s track, if the jury believe from the evidence that he did drive upon or attempt to cross the same, to look out and ascertain whether the track was clear or whether a car was approaching, and if the jury believe from the evidence that the plaintiff, by the exercise of ordinary care, should have looked and ascertain éd whether the track was clear and whether or not a car was approaching, and if the jury further believe from the evidence that the'plaintiff did not so look and ascertain whether the track was clear and whether or not a car was approaching, and that the plaintiff was injured in consequence of his failure, to so look and ascertain, if he did fail to so look and ascertain, then the court instructs the jury to find the defendant not guilty.”
The court added to this the.following:
“ Provided the jury find from all the evidence that immediately before and at the time of the accident the plaintiff was not in the exercise of ordinary care for his own safety.”
And as thus modified the court gave it to the jury. As modified it was equivalent to a statement by the court that though the jury might believe that the plaintiff had done and omitted to do all mentioned in the instruction, such conduct did not amount to a failure to exercise ordinary care. As given, the instruction was such an error that, under the evidence in this case, the judgment of the court below must be reversed.
Counsel for appellee say:
“ Why court or counsel should seek by instruction to confuse the jury with a question of appellee’s failure to look or ascertain the position of the car, when the proximity of the car was fully known to appellee according to his own admission, is one of those things which only happen in personal injury suits, where the court gives almost any issuable instruction the defendant asks.”
If the plaintiff knew all the while of the proximity of the electric car, and yet attempted to cross over the track in front of the car when it was- so near that to do so was very dangerous, he failed to exercise ordinary care.
The judgment of the Superior Court is reversed and the cause remanded.