On Petition eor Rehearing.
Jordan, J.The grounds assigned by appellee for a rehearing herein may virtually he said to be but two, the first of which is that the court failed to decide an important question presented by appellee in regard to the construction of rule twenty-two of this court; second, that the evidence in respect to the contributory negligence of the deceased is conflicting, hence the court erred in, deciding that question adversely to appellee.
It is contended that appellant’s counsel in his brief neglected to comply with the rule mentioned, and therefore the questions presented for our consideration ought not to *247have been considered. Appellant’s brief disclosed under proper captions the nature of the action, what the issues were, as to how they were decided, as to'what was the judgment of the court, and the errors relied on for a reversal. Appellant’s brief also gave a concise statement of the record in relation to the issues and the determination thereof, a concise statement of the facts which, as appellant claimed, the evidence established, and which were relied on for a reversal upon the ground, among others, that such facts established that appellee’s decedent was guilty of contributory negligence at the time of the accident. It is true that, under the caption of “Errors relied on for a reversal,” the brief merely stated such errors generally, in like manner as they were specified in the assignment of errors. It is not essential, under the circumstances, that we decide whether appellant complied in all respects with the requirements of rule twenty-two, for the only question determined was that the facts established by the evidence disclosed that the deceased was guilty of contributory negligence. Appellant had complied with the rule so far as the evidence was concerned, by making a statement in its brief wherein a condensed recital of the evidence in narrative form was given. If it were conceded that it had disregarded the rule in part, nevertheless it had the right to invoke the consideration of the court upon the questions presented upon the evidence relative to its own negligence and that of appellee’s decedent. Perry, etc., Stone Co. v. Wilson, 160 Ind. 435, and cases cited.
Counsel for appellee in their brief did not dispute the statement of facts contained in appellant’s brief disclosing contributory negligence on the part of the deceased, but were content to rest upon the argument that the rule which exacts of a traveler at a railroad crossing the duty to listen and look in both directions for approaching trains before attempting to cross had no application under the facts in the ease at bar. By reason of appellee’s silence in her *248brief in regard to the facts stated by appellant in its brief we are authorized under rule twenty-three to treat and consider appellant’s statement as accurate and true without referring to the record. McElwaine-Richards Co. v. Wall, 159 Ind. 557. We did not take advantage of this right, but examined the evidence contained in the record, in order to determine the question raised in respect to contributory negligence on the part of the deceased, and the adverse holding against appellee on that point was based upon the undisputed facts established by appellee’s own witnesses as shown by the record. If appellee’s contention that the evidence upon the deceased’s contributory negligence was conflicting could be sustained by the record, we would not hesitate to grant a rehearing.
In addition to the fact that he neglected to look before entering upon the track, two other undisputed facts are established by the evidence: (1) If he had looked toward the east before going onto the track, he could have seen the approaching cars; (2) if ho had not stopped on the track, he could have passed over in safety. The ease, under the facts and circumstances, is not one which can be said to warrant the drawing of different inferences or conclusions, thereby falling within the rule affirmed in Malott v. Hawkins, 159 Ind. 127, “so that an impartial, sensible man may draw the inference and conclusion that the injured person was guilty of contributory negligence, while another man, equally sensible and impartial, might draw a different conclusion.” Under the evidence, the question was, did the deceased exercise such care as a person of ordinary prudence would have exercised under the same circumstances ? Erom his conduct or acts in the matter, under the particular circumstances of the case, but one inference or conclusion can be drawn, and that is that he did not exercise ordinary care. In such cases on appeal to this court the error committed by the trial court in, rendering the judgment com*249plained of is one of law, which this court is required to correct. Cleveland, etc., R. Co. v. Stewart, 161 Ind. 242.
Counsel for appellee, in. support of their petition for a rehearing, among other things, say that if the deceased “had stopped at the place suggested, namely, three and one-half or four feet north of the north rail of side-track No. 1, he would have been struck by the cars, as there was not room between the timbers which supported the stone crusher and the side-track for a person to stand without being struck by a passing car.” They assert that, when he stepped out into the space between these timbers and the north rail, had he looked east he would have seen the cut of cars approaching within less than twenty feet of him at the rate of twelve miles per hour. They further assert that the deceased, being “in a place of danger, would have to retreat or advance, and, if he hesitated an instant, or made a mistake of judgment, such hesitation or mistake of judgment would''not constitute contributory negligence.” The infirmity of counsel’s argument is that it attempts to construct a case outside of the evidence. The deceased was not between the timbers and the track, and it appears that he had sufficient space in which to stand without being subjected to any danger. If counsels’ assertion is true, then he went upon the track without looking, virtually in front of the approaching cars, and before he succeeded in clearing the track he was struck and killed. The case, under the facts, is not one in which it appears that appellee’s decedent was placed in a position of danger through the negligence of appellant, and thereby became confused by his surroundings, and made a mistake in the choice as to the way or manner of escaping from such danger, and in so doing was killed by the cars. Before entering upon the track it fully appears that he was in a place of safety, and went therefrom into one of danger, without exercising in the least the ordinary precautions imperatively exacted *250of all persons who place themselves in similar positions of clanger. Wabash R. Co. v. Keister (Ind. Sup.), 67 N. E. 521, and cases cited; Rich v. Evansville, etc., R. Co., 31 Ind. App. 10; Elliott v. Chicago, etc., R. Co., 150 U. S. 245, 14 Sup. Ct. 85, 37 L. Ed. 1068.
We have -again given this case a careful consideration, and are constrained, to hold that appellee’s decedent is shown to have been guilty of negligence which proximately contributed to his death.
The petition for a rehearing is overruled.