The trial judge held that, construing the evidence most favorably to the plaintiff, it appeared that he traveled northward on the north-bound track more than 250 feet without looking to the rear, and that during the greater part of that time he could have seen the approaching car had he looked. This he held to constitute contributory negligence. The trial judge further held that the evidence would not justify a finding of gross negligence.
It is not possible for us to say that the conclusion of the trial judge as to the plaintiff’s contributory negligence was clearly wrong; in fact it seems to have been clearly right. McClellan v. Chippewa Valley E. R. Co. 110 Wis. 326, 85 *442N. W. 1018. This is not the case of a highway all parts of which are impassable or dangerous except the part occupied by the street railway track, as was the case of Kowalkowski v. M. N. R. Co. 157 Wis. 473, 146 N. W. 801. There was ample room to travel elsewhere than on the track in safety and comfort, but the plaintiff (if we are to believe his own story) chose to travel on a track which he knew was used by, cars going northward and never looked back or took the slightest precaution for his own safety while his horse slowly walked about 300 feet.
Another consideration seems very persuasive. The conceded facts amount almost if not quite to a demonstration that the plaintiff was not, as he claims, traveling on the north-bound track, but that he turned into that track from the west and without looking just before the car struck him. It is undisputed that the wagon was first struck on the hub of the right rear wheel, that the car then scraped along the side of the wagon, striking the hub of the right front wheel, and knocking off the small iron step projecting out from the right shaft. This seems practically impossible if, as plaintiff testifies, his wagon was on the track and he turned quickly to the west to get out of the way of the car. In this event the car, if it struck the wheel at all, must necessarily strike the felly rather than the hub, and the car could never scrape along the side of the wagon as was the case here. On the other hand, this would be the result naturally to be expected if the plaintiff was just turning upon the track when the car struck the wagon.
As to the claim that there was evidence of gross negligence which should have gone to the jury, the answer is not so plain, but we are entirely satisfied that it cannot be said that the trial judge was wrong in his conclusion.
By the Court. — Judgment affirmed.