(dissenting).
I do not think plaintiffs contributory negligence appears as a matter of law. He drove his ear at a very moderate speed. The jury could so find. And they could also well find that the street car was operated at an excessive speed and was not under control when- approaching the street on which plaintiff was driving. The only negligence then that may be suggested as to plaintiff would be his failure to anticipate or observe the motorman’s reckless speed and failure to have the street, car under control. Even if plaintiff did see that the street car traveled at a high speed the first half of the block it had entered,, it does not follow, it seems to me, that he was bound to anticipate that this speed would be kept up as a street intersection was approached. The vehicle driven by plaintiff needed guidance every moment, and he could not keep his eyes fixed on the street car all the time. The accident happened at night, and it was more difficult for plaintiff to observe the motorman’s negligence than if it had been daylight. Taire the facts as presented by the evidence and I think the question of plaintiff’s contributory negligence was for 'the jury and not the court.