On petition for a rehearing.
Perkins, J.A petition for a rehearing has been filed in this case. It is said, by the petitioners, that the record in the cause presented but two questions:
1. Whether the court erred in overruling the motion of *570the defendant for judgment in its favor on the answers of the jury to interrogatories ; and,
2. Whether the verdict of the jury was sustained by the evidence.
It is further said, that the court failed to decide the first question, and decided the second erroneously.
It is claimed, that, had this court held that the court below was right in overruling the defendant’s motion for judgment on the answers to the interrogatories, it could not, by the rules of decision practised upon by this court, have reversed the judgment because the finding of the jury was not supported by evidence.
The following are the interrogatories and answers mentioned, propounded by the defendant:
“ 1st. At what speed was the train running when it struck- the deceased ?
“ Ans. About three miles per hour.
“ 2d. Was the bell of the engine of the train ringing before and at the time deceased was struck ?
“ Ans. It was.
“ 3d. How long before the deceased was struck by the engine was the bell of the engine ringing ?
“ Ans. We do not know.
“ 4th. How far could the ringing of the bell on the engine be he.ard, at and immediately before the deceased was struck ?
“Ans. Two hundred yards.
“5th. Could the deceased, by listening, have heard the bell of the engine ringing, before he was struck by the engine ?
“ Ans. He could.
“ 6th. Did the deceased hear the noise of the approaching train, in time to leave the track before he was struck ?
“ Ans. We do not know.
“ 7th. Could the deceased, by listening, have known that *571a train was approaching, in time to have avoided the injury ?
“ Ans. He could.
“8th. Could the deceased have known, by looking, that a train was approaching, before he was struck by the engine ?:
“ Ans. He could.
“'9th. Bid deceased know that a train was approaching,, at the time he was struck by the engine ?
“ Ans. We do not know.
“ 10th. Bid deceased look to see if there was a tram approaching, while he was walking on the track ?
“Ans. We think not.
“ 11th. How far could the noise of the engine and tram be heard, at and just before the time the deceased was, struck by the engine ?
“ Ans. Two hundred yards.
“ 12th. Bid the deceased know, before he was struck by the engine, that a train of cars was approaching ?
“ Ans. It appears not..
“ 18th. How far could an approaching train be seen, from, the point where deceased was struck, going east ?
“ Ans. Erom two to four miles.
“ 14th. Was the deceased, at the time he was struck by the engine, in full possession of the senses of sight and; hearing ?
“ Ans. He was.
“15th. Was not the death of the deceased caused by him supposing that the engine and train were running on the: main track, and not on the switch ?
“ Ans. We do not know his suppositions.
“16th. Was not the death of deceased caused, in part, by-deceased’s supposing that the train was running on the maim track, and not on the switch ?
“Ans. We do not know his suppositions.”
We concede, for the purposes of this ease, without de*572ciding, that the court did not err in overruling the motion of the defendant for judgment in its favor, on the answers to interrogatories, and proceed to the question whether the verdict was supported by the evidence.
In considering and deciding this question, the rule governing our final action is, not that we must abstain from disturbing the verdict of a jury upon the evidence, but that we should not, as a general rule, disturb such verdict upon the weight of the evidence, where the evidence fairly tends to prove every fact, the existence of which was necessary to justify the verdict. No case in this court enunciates a different rule from this. Now, what was, not only .a fact, but the principal fact, which it was necessary for the plaintiff to prove, to entitle him to recover ? As the deceased was guilty of negligence, the plaintiff could recover only by proving that the deceased was wilfully killed by the railroad company. Jonesboro, etc., Turnpike Co. v. Baldwin, 57 Ind. 86; The Jeffersonville, etc., R. R. Co. v. Goldsmith, 47 Ind. 43.
We have carefully re-read the evidence in this cause, while considering this petition for a rehearing, and are constrained to come to the same conclusion arrived at on its original examination and decision. The evidence does not tend to prove a wilful killing.
The simple fact that the deceased was struck and killed by the train, under the circumstances existing in this case, does not tend to prove that the killing was wilful. It was the duty of the deceased to have stepped off' the track of the railroad; he could see his danger; his personal safety might depend upon his leaving the track; he had the .ability to do so at will, while it was not in the power of the train to do so. The presumption was, that he would leave the track at the last moment, at least, before being «truck; and it may be regarded as established law, that those in charge of the train had a right to act upon that *573presumption till it might he too late to avoid contact. The train, it should be observed, was running very slowly, and its speed was not increased as it- neared the deceased, whereby he might have been surprised and confused. The Citizens, etc., R. W. Co. v. Carey, 56 Ind. 396; The Bellefontaine R. W. Co. v. Hunter, 33 Ind. 335; The Lafayette, etc., R. R. Co. v. Huffman, 28 Ind. 287; The Lafayette, etc., R.R. Co. v. Adams, 26 Ind. 76; Mulherrin v. Delaware, etc., R.R. Co., 81 Pa. State, 366; The Terre Haute, etc., R.R. Co. v. Graham, 46 Ind. 239; The Jeffersonville, etc., R. R. Co. v. Goldsmith, 47 Ind. 43.
Original opinion filed at November term, 1877. Opinion on petition for a rehearing filed at November term, 1878.The petition for a rehearing is overruled.