On Petition eor Rehearing.
McCabe, J.The principal contention in support *61.of the petition for a rehearing is that we erred in applying the same rule to the acts of the appellee, as to contributory negligence, that is applicable to the ordinary traveler over the streets. It is contended with much vigor and ability that the authorities cited in support of the original opinion are not applicable because they, it is insisted, apply to and announce the rule applicable to ordinary travelers. That appellant was not an ordinary traveler or pedestrian over the street, and, hence, a different rule should be applied to him.
Appellant’s principal contention in his original brief was, that there is a distinction between negligence cases against steam railways and street railways as to the degree of care required of the complaining party. But now his principal contention is that he Avas not an ordinary traveler, and, hence, the rule in such cases is not to be applied to him; and Shoner v. Pennsylvania Co., 130 Ind. 170, and a large number of cases of that class are cited in support of the contention. That case and the class of cases cited in it, and those cited by appellee’s learned counsel, are cases where the defendant company had employed the plaintiff to work on the track of its railroad, or in other positions exposed to danger, making it the duty of the servant to give his attention to his work, and especially where such duty is of an absorbing nature liable to engross the entire attention of the servant. There can be no doubt that in that class of cases the law exacts a greater degree of care and caution on the part of the master, and a much less degree on the part of the servant than in other cases. It would be extremely unjust, and therefore unlawful, to permit the master to require of his servant the performance of duties on the track of its railroad, the very nature of Which must necessarily engross his whole mind and *62attention, and then require of him, while thus engaged, the same close observation for his safety that would be required of him in other cases.
But no such case is presented here, and no such relation existed. The appellant owed no duty to the appellee, and vice versa. The appellant was engaged, it is true, in laying gas pipe in a trench about three feet north of the north track of the appellee’s street railway, but he was in the employ of another and an entirely different corporation, the Manufacturers’ Natural Gas Company. If in his work he found it convenient to use the appellee’s street railroad track to walk up and down, back and forward, or across the same, he used it as all other people had a right to use it. He used it because it was a part of a public street, subject to which user the company held its franchise; . otherwise he would have been a trespasser. He used it just as any other person had a right to use it. It was not the work he was engaged in that gave him the right to use the appellee’s track, but it was because the track was a part of a public street, and the public had a right to use'it as such, subject to the superior right of the company as to priority of passage.
He stood then in the same category of the baker, the merchant, or the grocer, or any other member of the public who sends his servant out to deliver goods or perform any other service, and such servant finds it convenient to travel on the appellee’s street railway track. All such persons must be held to be ordinary travelers, and as such, bound to the observance of ordinary care for their own safety. This duty it is tacitly conceded that appellee did not discharge.
It is next repeatedly urged that the jury expressly found that the plaintiff was free from negligence; and it is further urged that the question of negligence or no negligence is a question of fact and not of law. The *63very case counsel have cited and relied on, both in their original brief and the one in this petition, namely, Shoner v. Pennsylvania Co., supra, states the law very differently, thus: “In cases involving questions of negligence, the rule is now settled that, where the facts are undisputed, and the inferences which may be drawn from them are not equivocal, and can lead to but one conclusion, the court will adjudge, as matter of law, that there is, or is not, negligence. While in cases where the facts are disputed, or where they are equivocal, the question of negligence must be determined by the jury under proper instructions. Baltimore, etc., R. R. Co. v. Walborn, 127 Ind. 142; Mann v. Belt R. R., etc., Co., 128 Ind. 138, and authorities cited in each. See, also, Rogers v. Leyden, 127 Ind. 50, where a full citation of authorities will be found.’'" See, also, Rush v. Coal Bluff, etc., Co., 131 Ind. 135; Cleveland, etc., R. W. Co. v. Harrington, 131 Ind. 426; W. C. DePauw Co. v. Stubblefield, 132 Ind. 182; Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39; Smith v. Wabash, etc., R. R. Co., 141 Ind. 92; Board, etc., v. Bonebrake, 146 Ind. 311.
It is not even claimed, nor is it true, that the inferences arising from the facts found were equivocal, or that two persons equally intelligent and impartial might draw different conclusions or inferences from the facts found; and as the special verdict has settled the facts, they are no longer in dispute, nor is it even claimed by appellee’s learned counsel that they are any longer in dispute. The question of negligence or no negligence on the appellant’s part, contributing to his injury, is, therefore, purely a conclusion of law, to be drawn by the court from the facts found by the jury; and, hence, the statement of such inference or legal conclusion by the jury has no force.
Petition overruled.