I cannot concur in the j udgment rendered in *83this case. The ruling is placed upon the ground that the evidence does not show that the plaintiff looked in both direc-r tions before attempting to cross the track of the railroad. That was a question which ought to have been, and doubtless was, fully considered by the jury in rendering their verdict, and the court in passing upon the motion for a new trial. The question having been duly considered by those who had far greater opportunities of knowing the truth than we have, we should indulge a strong presumption in favor of the action of the jury and court below.
By the opinion of the court, the presumption is against the action of the jury and court below. The plaintiff testified that he looked and listened, and saw nothing and heard nothing of an approaching train. Viewing the evidence as it is put on paper, and indulging the proper presumption in favor of the action of the lower court, we should presume that the plaintiff looked in both directions.
But conceding that the plaintiff was. guilty of slight negligence, I am of the opinion that he is entitled to recover upon two grounds:
Eirst. In my opinion, the negligence of the employes of the railroad company was so great and gross as to imply a disregard of consequences, and a willingness to inflict the injury. When such is the case the plaintiff may recover, though he is a trespasser, or did not use ordinary care to avoid the injury. Wright v. Brown, 4 Ind. 95; The Evansville, etc., R. R. Co. v. Lowdermilk; 15 Ind. 120; The Lafayette, etc., R. R. Co. v. Adams, 26 Ind. 76. See the numerous cases cited in the notes to section 37, pp. 45 and 46 Shearman & Redfield on Negligence.
Second. The train which1 inflicted the injury was run through the streets of a populous city at the rate of twelve miles an hour, when the track was frosty, which rendered it more difficult to control the train. The brakemen, instead of being at their places, where they could have materially aided in stopping the train, were upon the engine. If it was too cold for the brakemen to be at their places, it was too cold to run the train. The bell was not rung, nor was the whistle sounded. *84Those in charge of the train, in open violation of the ordinance of the city regulating the speed of trains and ringing of the bells thereon, and in utter disregard of consequences and the security of human life, rushed upon the plaintiff, and by their whole conduct evinced a willingness to inflict the injury complained of. I cannot, by concurring in the judgment, give my sanction to such reckless disregard of human life.
It is now well settled, both in England and in this country, that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, if the defendant, after becoming aware of the plaintiff’s danger, failed to use ordinary care to avoid injuring him; for in such case the failure to use such diligence is held to be alone the proximate and immediate cause of such injury. See section 36, and the cases cited in support of the doctrine there stated in the notes to such section, of Shearman & Redfield on Negligence, pp. 43 and 44.
The following cases in this' court support the doctrine above stated : The Evansville, etc., R. R. Co. v. Hiatt, 17 Ind. 102; Thayer v. The St. Louis, etc., R. R. Co., 22 Ind. 26; The Indianapolis, etc., R. R. Co. v. Wright, 22 Ind. 376; The Indianapolis, etc., R. R. Co. v. Keeley’s Adm’r, 23 Ind. 133.
Those in charge of the train swear that they saw the plaintiff, his wagon and team, when he turned the corner of the house on Eleventh avenue, when the train was about three hundred feet from the place of accident, and that the engineer shut off steam and reversed the engine. It was fully shown by the evidence that the shutting off of steam and reversing the engine had very slight effect upon the train, and tended in a very slight degree, if at all, to lessen the danger of the plaintiff. If the engineer had sounded a sharp and shrill whistle, it would have reached the plaintiff, and would have induced him to stop before he reached the track of the railroad. But there is no pretence that this was done. This is the most usual and effective way of giving notice of danger, but it was not resorted to, which is another striking, and, to my *85mind, conclusive, evidence of the reckless and inhuman conduct of those in charge of the train.
Opinions filed November term, 1874; petition for a rehearing overruled May term, 1875.The sanctity of human life, and a regard for the property of the citizen and the rights of the public, imperatively require that railroad companies should be taught a lesson which will induce them to employ more prudent, humane, and law-abiding persons than those in charge of the train in question, to operate and control the trains upon their roads.
In my opinion, the judgment of the court below should be in all things affirmed.