On Petition for a Rehearing.
Busicirk, J.A rehearing has been asked in this case, upon the ground that in the original opinion we had not fully considered and decided whether the court erred in admitting in evidence the ordinance of the city of Indianapolis regulating the speed of cars within the city. The question was presented in two modes; first, in the exception to the ruling of the court admitting such evidence; and, second, in the refusal of the court to give to the jury the secónd instruction asked by the appellant. We considered , and decided the question as it arose upon the refusal to give the second instruction. We are now asked to grant a rehearing because we did not, in express terms, decide whether the evidence was admissible. Two objections are urged to the competency of the evidence, first, that it was not properly pleaded; and, second, that it was irrelevant. We think that neither objection is well taken. It was alleged in the complaint that, by an ordinance of the city, it was unlawful for trains of cars to run within the city at a greater rate of speed than four miles per hour, and that the train of cars which inflicted the injury upon the plaintiff was running at a greater rate of speed than four miles per hour.
The action was not based upon the ordinance, as was the case of Green v. The City of Indianapolis, 25 Ind. 490, and *376hence it was not necessary to file "a copy of the ordinance with the complaint.
T. A. Hendricks, O. B. Hord, and A. W. Hendricks, for appellant. y. W. Gordon, y. R. Troxett, y Hanna, and F. Knefler, for appellee.We are also of the opinion that the evidence was competent. It was, under the allegations of the complaint, admissible to prove that the defendant was guilty of negligence, and it was also clearly proper for the jury to consider in determining whether the plaintiff was without fault, which was the principal controverted point in the case. The rate of speed within the city being prescribed by a public law, the plaintiff, in determining whether it was safe and prudent for him to attempt to cross the railroad track, had the right to assume that the defendant would comply with such ordinance. It might have been safe for the plaintiff to have attempted to cross the track of defendant’s road if the cars only ran at the rate of four miles an hour, while it would have been unsafe and reckless to have made such attempt if the cars were being run at a much greater rate of speed.
We are very clearly of the opinion that the court committed no error in admitting the ordinance in evidence, and in refusing to instruct as requested. We have, upon the petition for rehearing, again fully considered all the questions in the case, and are entirely satisfied with the judgment heretofore rendered.
The petition is overruled.