The plaintiff, while driving a team attached to a load of barrels on a narrow street, turned his team upon the track of the defendant’s trolley road, to pass a carriage standing by the roadside. As the front wheel of the wagon was brought upon or near to the westerly fail of the track, the load was struck upon the side, near the front, by defendant’s car, whereupon the plaintiff’s team ran away, and he was Injured. He recovered a verdict in an action for negligence, and the defendant has appealed. The principal questions raised arise over the claims of defendant’s counsel that (1), plaintiff’s contributory negligence conclusively appeared; (2), if not, the court erred in his instructions to the jury upon that subject.
The evidence showed that the plaintiff sat in front of his load of barrels, which was 28 feet long, and 12 to 14 feet wide at the top, and that he occupied a position from which he could not see what was behind without moving to the edge of the load; that, without doing so, he turned his horses upon the track, to pass a vehicle, and was struck, as already stated. The testimony varied as to the distance between the wagon and the approaching car, one witness putting it about 100 feet; others, as low as 10 or 15 feet. It is contended that the evidence demonstrates the proposition that the car must have been so close when the plaintiff turned upon the track that it could not be stopped, and therefore that it should be held, as matter of law, upon established facts, that the plaintiff was negligent in turning upon the track in front of a rapidly approaching car. and that the defendant was not negligent.
We are unable to say that the evidence is conclusive in this regard. In a crowded thoroughfare, where there are four tracks upon which cars are passing at intervals of four minutes, caution is necessary upon the part of all who use the street; and whether an accident is caused *465by the neglect of one or two parties must usually be a question of fact where, as in this case, the witnesses do not agree as to material circumstances. The use of electric cars involves, as it was intended it should, rapid transit. More or less time is required to stop them. They have the right of way, within reasonable bounds; and other travelers, by ordinary methods,'owe the duty of making way for them without unnecessary or unreasonable delay. Of necessity, ordinary vehicles must be permitted to drive upon and cross the tracks when the cars are at a reasonably safe distance, and the railway company is in duty bound to keep a sharp lookout, and use prompt measures to prevent accidents when danger threatens. But persons should not pass upon a track without using some precaution to ascertain whether danger is imminent. The case of McGee v. Railway Co., 102 Mich. 107, is a case in point. In. that case a pedestrian looked in one direction, but not in the other, before stepping upon the track, when by doing so he would have seen the lights of the approaching car. In the more recent case of Fritz v. Railway Co., ante, 50, it was held that one riding in a covered carriage, and thereby prevented from looking behind, could not recover against the street car company, when he turned suddenly upon the track, in front of a car, and was injured. From these cases it appears that it is negligent to go upon a track without taking some precautions to ascertain whether it is safe, and that a person cannot avoid this by placing himself in a position where he cannot easily see an approaching car. The plaintiff did this thing; and if the car was so close that it can be said to have been an imprudent thing to do, if ordinarily prudent persons, knowing the whereabouts of the car, would not have thus turned upon the track, his act was negligent, and should preclude a recovery, if it contributed to the injury. The charge of the court seems to qualify this duty to look for an approaching car by making it depend *466upon his convenience. After stating that he was not a trespasser upon the track; that the street-car company had only an easement, and had no exclusive right to-travel upon its tracks; and that it was bound to take-the same care in preventing collisions as the driver of a wagon, — he added:
“But the plaintiff would not have the right to drive into apparent danger, such as would be in the face of an approaching car, if he Imew, or could have reasonably ascertained, that fact, under the circumstances in which he was placed.”
And again he said: “If, under all the circumstances of the case, considering the wagon and raclc that the plaintiff was using, the mawner in which it was loaded, the place upon the raclc ichere plaintiff was sitting, the team he was driving, the» obstruction in plaintiff’s way (if you find that there was such an obstruction, and that he could not pass around it, without getting upon or near the track, within the space that would be occupied by a car thereon), taking these and all the other circumstances of the case, as they appear from the evidence, into consideration, if plaintiff was acting in' the exercise of ordinary care, as a prudent and careful person, and was injured through the negligence of the defendant in not stopping its car or retarding its speed, if by so doing in a prompt, prudent, and careful manner, the injury to the plaintiff, if any, would be prevented, the defendant is liable in this action.”
And again he said:
“The fact that plaintiff’s wagon appeared to be on or within the line of the track, when struck, is not of itself conclusive evidence of negligence, for he had a right to be there, unless the car of defendant was at the time threateningly near to the part of the track where plaintiff was, and he had, by the exercise of ordinary prudence, the means of knowing of the immediate approach of such a car.”
“While it is lawful, and not negligence, to drive a wagon along upon the rail, or between the rails, of an electric street-railway track, when such part of the track is not in use by cars, and none are near the immediate vicinity, yet I charge you that it is negligence in the *467driver of a wagon, after he has been traveling and going to the side of such street-car track, to turn his vehicle from the roadway by the side of the track, over and upon the street-car track, in front of a motor car, which is approaching from behind, and proceeding at a lawful rate of speed, in full view, and could have been seen by the driver if he had looked out for it, and was so near by that the moving car will necessarily collide with the wagon, unless the niotorman, by extremely prompt and vigorous action, at once takes quick measures to bring his car to a standstill within the shortest time possible.”
He concluded his discussion of the question as follows:
“It is negligence to drive a wagon load of barrels in front of an electric car, which is only a few feet away, while the car is approaching from behind at its usual and lawful rate of speed, when there is not time for the wagon to clear the track and get out of the line of danger before the front end of the car would reach the wagon and come in contact with the load, unless the car is suddenly stopped; that is, if the driver knew or could reasonably have ascertained that fact, under the circumstances. If the plaintiff knew that a car was approaching near by, and only a few feet away, and at an ordinary rate of speed, just before he drove towards the track, it would be his duty to stop his team, and allow the car to pass; and under such circumstances, if he drove on the track in front of the car, this would be negligence on his part, and would prevent his recovery in this action.”
In our opinion, this naturally tended to give the jury to understand that turning suddenly upon the track, in front of an approaching car, so close that a collision would necessarily ensue unless the motorman, “by extremely prompt and vigorous action,” should prevent, would not be contributory negligence, unless the plaintiff knew that the car was only a few feet away, or unless he could reasonably have ascertained the fact from his seat in front of the barrels. In other words, the charge seems to imply that a man may place himself in any position that his convenience or the exigencies of his calling may require, and drive upon the *468track, without taking correspondingly greater precautions than would be necessary if in an open wagon; relying upon the proposition that he has the same right there that the car has, and that the motorman is required to avoid the collision. The evidence shows that the plaintiff made no effort whatever to ascertain whether a car was coming or not. In the case of a covered milk wagon, this was. held to be negligent, and the rule should be the same in this case.
Whether or not this negligence contributed tO' the injury is another question, which we cannot determine, it being for the jury. It was contended that it was a case of recklessness upon the part of the motorman. If there was an intentional or wanton running into the load of barrels, by the motorman, after discovering plaintiff’s perilous position, there would be room for the application of the doctrine that the negligence of the plaintiff was not contributory; but if that element was lacking, and the accident involved only a want of ordinary judgment, prudence, or care, there is no room for it.' Doubtless, the use of streets for cars is an inconvenience to other travelers. We should hardly recognize the common experiences of ordinary life, did we not understand that mutual annoyance and friction to and between those who operate cars and other vehicles is to be expected, and that wanton and intentional injuries are possible, as are unnecessary detentions of cars by willful teamsters. But they are not to be presumed, and, unless there is some tangible evidence that a collision is intentional or wanton, a jury should not be permitted to so find. We do not intend to imply that there was or was not such evidence in this case. It is alluded to because it is made a prominent subject of discussion in the briefs of counsel, from which we infer that it is considered an important question in the case.
The judgment should be reversed, and a new trial ordered.
*469Grant and Montgomery, JJ., concurred with Hooker, J