Pinz v. Milwaukee Electric Railway & Light Co.

176 N.W. 67, 171 Wis. 11, 1920 Wisc. LEXIS 63

Opinion

RoseNBerry, J.

Two questions are presented. The plaintiff claims, first, that th'e verdict of the jury, finding that the plaintiff did not look before entering the zone of danger, is contrary to the established physical facts; and second, that the trial court erred in refusing the plaintiff’s request to instruct the jury as follows:

“You are instructed as to the fifth question of the special verdict that the plaintiff is presumed to have looked and listened before entering the zone of danger; that she conducted herself as the greate^ mass of women of her age, her infirmities, would have c6ád”¿ted themselves under the same circumstances; and that plaintiff"^ presumed to exercise' the care that women of her age and infirmities would have exerCjsed under the same circumstances,” citing Whitty v. Oshkosh, 106 Wis. 87, 81 N. W. 992.

1. We have carefully examined the evidence and plaintiff’s argument in support of the first contention, and are of the opinión that the verdict of the jury is amply supported by the evidence and not contrary to the established physical facts.

2. The trial court did not err in refusing the requested instruction, because it is not a correct statement of the law applicable to the case. While it is true that in the absence of all evidence persons are presumed to have been in the exercise of ordinary care, such presumption does not obtain where there is, as in this case, credible evidence to the contrary. An eye-witness testified that plaintiff did not look. The verdict of the jury shows that the testimony of this witness was credible. The request, made as it was without qualifications, .was for that reason alone properly denied. The trial court properly submitted the matter to the jury upon the whole evidence as it stood.

By the Court. — Judgment affirmed.