Our former opinion in this action is found ante, p. 362, 6 N. W. (2d) 372.
We granted an oral argument on the motion for rehearing limited to two questions. Was the deceased guilty of contributory negligence as a matter of law? What duty did those using the highway owe to the deceased?
Supplementing the statement of facts shown in our previous opinion the following evidence should be added.
As it relates to the deceased, the plaintiff’s evidence disclosed only that, after the Backes car came to a stop, the deceased was lying close by the left front end of the Backes car. Plaintiff’s evidence did not disclose how the deceased happened to be in the street, what he was doing, or how long he had been there before the fatal accident. Contributory negligence of the deceased was not shown when plaintiff rested.
Defendant’s evidence' shows that the deceased, sometime before the accident, had been in the café, left and walked east therefrom along the sidewalk. Later when the defendant’s employees were working on the truck and defendant’s driver was standing in the street, holding a flashlight on the part being’ repaired, the deceased came along the sidewalk going west, left the sidewalk, came around the front of the truck into the street, asked what was wrong and stood by and to the east of the driver talking with him and watching the work being done; he was there when the wheel was removed; he was not assisting in the work in anyway; and he remained there for a period of from four to six or not to exceed ten minutes before he was struck by the Backes car. Plaintiff offered no evidence in rebuttal.
*369From the undisputed evidence of the defendant it appears the deceased went into the street and remained thére as an onlooker; and that the position of the truck, lack of lights, flares and warning signal devices, and the location of the dual wheel, were all known or were patently visible to the deceased for some minutes before the accident.
Deceased remained there under those conditions until he was injured. Defendant relying- largely on Levine v. Shell Eastern Petroleum Products, 73 Fed. (2d) 292, argues that the same facts that tend to establish the negligence of the defendant Watson Brothers Transportation Company likewise tend to establish the negligence of the deceased, and that deceased’s care for his own safety diminished in the exact proportion that the negligence of the Watson company increased. We are unable to follow that line of reasoning.
As shown by plaintiff’s evidence the Watson company’s negligence consisted in leaving its equipment on the highway, without lights or flares, and in putting the dual wheel in the traveled portion of the highway, and in its taking no action to warn those using the highway of the conditions of danger which it had created. The deceased’s negligence, if any, was not in doing those things, but in going into and remaining in the street where those conditions existed.
We have held: “Want of ordinary care, and not knowledge of the danger, is the test of contributory negligence.” Welsh v. City of South Omaha, 98 Neb. 148, 152 N. W. 302, last followed in Element v. Lindell, 189 Neb. 540, 298 N. W. 137.
We have also held: “A person who knowingly and of his own volition exposes himself to an obvious danger cannot recover damages for any injury which he might have avoided by the use of reasonable care.” Kerwin v. Thompson, Belden & Co., 110 Neb. 251, 192 N. W. 692.
The questions then for determination are whether or not the deceased was in the exercise of ordinary care in going into and remaining in the street under the circumstances there existing; could he have avoided injury to himself by the use of reasonable care; and if he was guilty of contrib*370utory negligence was that negligence more than slight so as to bar recovery under the provisions of section 20-1151, Comp. St. 1929? As we view it these are questions to be determined by a jury and that the facts shown do not establish contributory negligence which as a matter of law prevents recovery.
Defendant further contends that the deceased was merely loitering on the highway, and was not “actually making viatic use of the highway,” and that it owed him no duty “except not to wantonly or intentionally injure him,” citing 45 C. J. 840, and Cooper v. Teter, 15 S. E. (2d) (W. Va.) 152, and Conner v. East Bay Municipal Utility District, 8 Cal. App. (2d) 613, 47 Pac. (2d) 775.
We have held that, “When one engaged in the lawful use of the highway causes an obstruction to be placed upon it in such a manner as to be dangerous to traffic, he must use ordinary care to prevent injury to others where he knows that said obstruction is calculated to do injury to travelers upon said highway.” Simonsen v. Thorin, 120 Neb. 684, 234 N. W. 628. It is clear then that the defendant owed the duty of ordinary care to prevent injury to the deceased unless the fact that deceased was a bystander on the highway prevents the application of the rule. We are not prepared to say that the mere fact that deceased walked into the street and stopped for the purpose of observing what was going on there relieves the defendant from liability to him for the results of its negligence. The controlling fact is that the deceased was in the street, and not the intent he had in being there.
The liability of the defendant is predicated upon the facts which plaintiff’s evidence tends to establish. The deceased’s liability for negligence or contributory negligence is predicated upon the fact that he went into and remained in the street under the circumstances then existing.
In Brenning v. Remington, 136 Neb. 883, 287 N. W. 776, we reviewed the authorities dealing with the question of a person who is injured while standing in a street. They will not be repeated here.
*371It is admittedly difficult to find cases in point on all the facts. We cite the following cases as supporting the conclusion we have reached in this matter.
In Shore v. Minter, 160 Minn. 215, 199 N. W. 744, plaintiff had been standing at an intersection talking- for “a few minutes” with one foot on the curb and one foot in the street. While in that position she was struck by a truck driven by defendant. Neither party saw the other. Contributory negligence was claimed. The court held that a jury question was presented.
In Walters v. Rowls, 105 Ind. App. 632, 16 N. E. (2d) 969, plaintiff Rowls had been standing in the street at the side o'f defendant Walters’ truck which was out of gas at night and without lights required by statute. Rowls saw the car of Pense approaching from the rear, and Rowls left his place in the street, walked around in front of the Walters’ truck for the purpose of getting off the pavement. The Pense car hit the Walters truck and it in turn hit Rowls. Walters contended that Rowls was a spectator or bystander with full knowledge of the fact that Walters had not complied with the provisions of the statute as to lights and flares and was therefore guilty of contributory negligence as a matter of law. The trial court held that a jury question was presented and that judgment was affirmed.
In Perrodin v. Thibodeaux, 191 So. (La. App.) 148, the deceased was standing on the pavement, at 8 p. m., beside a car parked in front of a village store. Several men were standing beside or leaning against the car. Deceased was run into by a negligently operated truck of the defendant. The court asked this question: “Was the deceased guilty of contributory negligence in standing on the paved portion of the highway beside the parked car, and in his failure to get out of the way of the fast approaching- truck?” The court said: “The mere fact that a person is standing on the edge of the road when struck by a car, does not necessarily show contributory negligence on his part as a matter of law, where there is ample room for the motorist to pass, as the pedestrian has a right to assume that the motorist will not, without warning, fun over him.”
*372In White v. Edwards, 222 Mich. 321, 192 N. W. 560, the plaintiff had walked across the street to talk the driver of a truck to see if he could get a ride to a near-by town. He stood there for about three minutes. Defendant’s automobile struck plaintiff while he was standing- beside the truck. It was contended that plaintiff was not “walking” within the provisions of a statute determining the duty of one using the highway. The court declined to give “a narrow, limited construction,” saying that such statutes are designed to protect life and limb and further said: “Numerous decisions of courts of last resort hold, and we think they should be followed, that one injured while momentarily standing in the highway and when not in motion is not per se guilty of contributory negligence, and that the offending party is not exonerated from all duty and from liability by the fact that he is not in motion.” (Citing cases.)
The question of defendant’s negligence, if any, and deceased’s contributory neglig-ence, if any, are jury questions to be determined by the rules as. to ordinary care.
The motion for a rehearing is denied.