(1) There was evidence from which the jury could infer that the motorman saw the plaintiff’s wagon for some distance so near the car track as to render a collision inevitable when the car overtook the wagon, and that, notwithstanding this fact, the said motorman proceeded without alarm or signal, and with a knowledge that the plaintiff was not aware of the approach of the car, and without an attempt to check or stop said car until it was too late to preyent a collision. In other words, there was evidence from which the jury could infer that the motorman, after a consciousness of the plaintiff’s peril and with a consciousness of the fact also that he would be injured unless he was informed of his danger or unless the car was checked or stopped, proceeded, without signal or warning, until he ran into the wagon, although the injury could have been avoided by first warning the plaintiff, or by slowing or stopping the car before he attempted to do so. The motorman admitted seeing the plaintiff cross the track and until his wagon was struck, but claims that he was but a few feet off, and that he gave a signal, and then stopped the car as soon as he could, but the plaintiff’s evidence tended to show that he was not injured when crossing, but after he had crossed and had gone up the street some distance parallel with the car track in a straight line and all the time dangerously close to the said track. The trial court did not err i-n submitting the wanton count of the complaint to the jury or in refusing the defendant’s charges based upon the theory that there was not sufficient evidence to take this count to the jury.
(2) We cannot say as matter of law that the plaintiff was guilty of contributory negligence for driving his wagon along a public street without riding backwards and keeping a lookout for approaching vehicles.
(3) There was no error in refusing the defendant’s requested charge 11. If not otherwise faulty, it exacted only such care as *470would be used by an ordinary person instead of one skilled in the running and handling of street cars.
We cannot say that the trial court erred in refusing to grant a new trial.
The judgment of the circuit court is affirmed.
Affirmed.
McClellan, Sayre, and Gardner, JJ., concur.