On Petition for Rehearing.
Myers, J.25.
The learned counsel for appellee have made an earnest appeal for a rehearing in this cause, basing their application upon the proposition that we were in error in holding the twenty-fifth instruction harmful, -for the reason that the one act of negligence — the violation of the speed ordinance — is sufficiently pleaded, and that the verdict is shown by the interrogatories to rest upon that allegation of negligence, by the finding that the speed of the train was twenty miles per hour, the ordinance limit being twelve. It is true, as we held, that the one act of neg*126ligence sufficiently pleaded was the violation of the speed ordinance, hut the difficulty with appellee’s position arises not from the application of the rule he invokes, but from the allegations of the complaint that “his injuries were caused by the negligence of the defendant in not furnishing plaintiff a safe and suitable place in which to work, in putting him in a dangerous place, and in not using care commensurate with the danger to which it exposed him, by running said train No. 31 at an unlawful speed, in violation of a city ordinance, on the wrong track, out of schedule time, recklessly in a place of danger, through deep darkness and dense fog, without ringing the bell, sounding the whistle, or giving any warning to plaintiff of the approaching danger, ’ ’ coupled with the instruction that “if the injury complained of was caused by any one or more of said acts of negligence, ’ ’ and he was without fault, they should find for the appellee. If we eliminate from the complaint all the alleged acts of negligence except the one well pleaded, it would read: “Iiis injuries were caused by the negligence of the defendant in running said train No. 31 at an unlawful rate of speed, in violation of a city ordinance, recklessly in a place of danger,” etc. This instruction wholly fails to separate the negligence charged in running the train in violation of the ordinance in which no question of assumption of risk is involved from the other alleged acts of negligence in which that question is involved, and, taken with the finding on the question of care, places the latter as depending upon a false basis.
If the answers to the interrogatories had shown only negligence in the matter of the violation of the speed ordinance, appellee’s position would have force; but they go much further. The jury finds that appellee was traveling a usual way in going to his work (not while engaged at work), known to appellant to be so used by the men employed; that it would have been unsafe and dangerous for him to stand between the tracks; that the train was off its schedule *127forty minutes, and ivas running over a track not usually taken by it; that the space between the main tracks was unsafe to walk in, owing to loose, uneven gravel, boulders and cinders, and the same was true as to the space north of the west-bound track; that appellee knew the leaving time of the train, and did not know whether it had gone; that he saw the east-bound train on the west-bound track, or the track usually taken by train No. 31; that he knew that the latter was frequently late, and was liable to pass at any time, if it had not yet gone; that appellee might have gone in such way as not to pass through the yards, but that such •way was not as safe and convenient as through the yards, owing to obstructions such as elbow pipe, ditches, mud and water, and the east leg of the “Y”; that appellee traveled 1,200 feet on the east-bound track, then, to escape rapidly approaching train No. 41, he stepped between the rails of the track on which train No. 31 was running, and within two hundred feet of train No. 31, upon which the headlight was burning; that he walked thirty feet before being struck; that no train was scheduled to run on the track on which he stepped, and he believed none would run on said track — and that that was the exercise of the greatest possible care.
*128 27.
25.
*127Appellee argues that as one of the acts of negligence charged was the unlawful speed, it is sufficient that the jury find that fact, and that the general verdict covered the fact of contributory negligence, and that the other findings may be ignored. If it stood upon the question whether the findings support the judgment upon the question of the violation of the speed ordinance, we should unhesitatingly say that they are sufficient, but it does not so stand; for from all the findings it is impossible to say, under the instruction, whether it is predicated upon the speed ordinance, or on the other facts found, and we are asked to eliminate the latter, and conclude that the judgment should be upheld upon the unlawful speed rate, because that is the sole cause of action sufficiently pleaded, which is equivalent to saying that if *128there is one good paragraph of a complaint, or one cause of negligence sufficiently pleaded, it is wholly immaterial that a jury is told that it should find for the plaintiff, if it finds the facts as set forth in any paragraph, though it is bad, or any of the causes pleaded, though all are insufficiently pleaded save one, and that the judgment should be upheld, because among the other facts specially found, and which the jury is told are equally potent, are found the facts in the good paragraph, or the one cause sufficiently pleaded. Though the burden of showing contributory negligence was upon appellant, that fact, if it exists, might be shown by any evidence in the cause. Whether the going-upon the west-bound track, after eliminating from consideration the want of right in appellee to rely upon the train’s not running on that track, and out of schedule time, was or was not negligence, or the proximate cause of the injury, was a question for the jury, even though the running of the train was negligent, but the instruction is bad in leaving those facts before the jury, as not involving any question of proximate cause or contributory negligence. The point was not made by appellant as to error in instruction No. 25 as withdrawing the question of contributory negligence or proximate cause, and was not mentioned in the opinion, but was considered upon the question as to whether, under the answers to the interrogatories, the general verdict, and the complaint, the judgment could be affirmed, and is only adverted to here to point out the harm. The finding shows affirmatively that the care used by appellee was such care as was based on his going on a track “where no train was scheduled to run, and where he believed none would run,” when he had no right to rely on those facts. In the absence of that finding we might be justified in holding that the general verdict supplied the deficiency, and covered the subjects of contributory negligence and proximate cause.
It must be borne in mind that the guestion is not of the *129sufficiency of the findings to support the judgment, but whether the instruction was harmless. In other words, with the other facts which are found by the jury the subject of consideration by it upon the question of contributory negligence, can we say that it must necessarily have found for appellee by its general verdict, irrespective of the instruction ? Or is the fact of the violation .of the speed ordinance so connected with the facts as to the place’s being unsafe, the train’s being on a track not usually taken by it, and off its schedule forty minutes, that they may have been as controlling in the mind of the jury on the question of contributory negligence as the violation of the speed ordinance was upon the question of the negligence of defendant?
The fact, that the jury is told by the instruction that appellee must appear to have been without fault, was of no consequence, when the acts which are pleaded as adjuncts of the one sufficiently pleaded cause are in and of themselves of such character as to remove the question as to 'his being at fault, for the jury is, in effect, told that those acts are sufficient in themselves to warrant a finding for appellee. The question of contributory negligence, which was the question around which the contest was waged, was practically eliminated. It is therefore not like a case of a good paragraph and a bad one, with a finding on each, or such a state of the record as to show a finding on the good paragraph, or a finding upon one sufficiently pleaded fact, even though there was also a finding on the others. It is not a question of the sufficiency of the finding, but of the effect of the instruction upon which the finding was based.
The jury may well have concluded that appellee was without fault, because he was where he had a right to be as alleged, and the train was off its schedule time, and upon a track not usually taken by it. The harm in the instruction taken with the findings arises from the practical elimination of the questions of proximate cause and contributory negli*130genee in connection with the sufficiently pleaded act, for while it charges that the plaintiff must be free from fault, it also in effect- tells them, that he would not be in fault if he was where he had a right to be, or if the train was off its schedule time, or on a track not usually taken by it. So it cannot be said that the verdict is a finding against appellant on the question of contributory negligence. According to appellee’s theory and the findings, if the train had been on time, or if it had been on the track usually taken by it, neither of which facts had he a right to rely upon, appellee would not have been injured by it. Hence is seen the importance of the element of contributory negligence claimed by appellant in appellee’s going on the west-bound track.
28.
Complaint is also made of our statement as to the interrogatories, being conflicting, and as to justice demanding a new trial. This statement was made from the fact that appellant insisted that it was entitled to a judgment upon the answers to the interrogatories, as showing contributory negligence. Applying the same rule that we do here, that we cannot say from the findings under instruction twenty-five, either that there was a finding against appellant on the question of contributory negligence, or that there was a finding in its favor, it was manifestly unjust that it should have judgment on the answers to the interrogatories, and that a new trial ought to be allowed.
25.
On the question of the conflict of the answers to the interrogatories, the jury found that appellee was traveling the usual route to the office “in obedience to the orders” of the foreman; it also found what the order was, and that it was “to report for duty at the yard office;” that “his effort to leap from the east-bound track when a train was approaching, over to the west-bound track where no train was scheduled to run, and where he believed none would run, was an exercise of the greatest possible care;” that he had no “warning or notice of the approach of said train in time to escape it;” that he “knew the leaving time *131from Greensburg of said train No. 31;” that he did not know whether “train No. 31 had gone, or was late;” that if it had not gone he knew “that it was liable to go at almost any time;” “that for some time train No. 31 had been leaving Greensburg late;” that a “train was liable to come along upon either of the main tracks at any time.”
It will thus be seen that with these findings, in which is included the circumstances under which appellee was where he was, the character of the alleged order, the care he exercised with reference to stepping from one track to another, are included the findings on the question of the train’s being off its schedule, and on a track not usually taken, neither of which had he any right to rely upon, and if not, the question of contributory negligence was involved in his so doing, as it was also in the question of the character of the order, and so involved, that we cannot say that it was covered by the general verdict, because a wrong basis was given to the jury for determining the question. So far as anything here appears, he might have been injured had the train been running not to exceed twelve miles an hour, and as the jury finds that he walked thirty feet after entering upon the track, and the train was running twenty miles an hour, and was 200 feet away when he entered upon the track, it would cover the distance in about eight seconds, and running at twelve miles an hour would cover it in about thirteen seconds, and the question whether he was or was not negligent was one for the jury, without taking into consideration that the train was on a track not usually taken, and was off its schedule time. Whether he used ordinary care, or the highest degree of care, in stepping from one track to another, must be determined by the duty owing to him by the appellant. If it owed him no duty with respect to the train’s traveling upon one track or another, or upon or off its schedule time, and the jury was told, in effect, that the duty was owing to him, when, as a matter of law, it was not, and he had no right to rely upon it, as the answers show he did, the element of con-*132tributary negligence was practically eliminated, even as to the findings which would otherwise support the judgment, as was also the assumption of risk, which is directly involved in all the alleged acts of negligence, except the violation of the speed ordinance.
It is also insisted that the error urged by appellant as to instruction twenty-five was only as to its ignoring the assumption of risk. That point was definitely made and argued. Appellant was clearly right in that contention, if any act was charged other than the speed of the train to be the basis of recovery. The jury was told, in effect, that any one of them would be the subject of recovery, if found to exist, irrespective of the question of the assumption of risk. It is not sufficient, as counsel urge, that “the record affirmatively shows that the issue of the violation of said speed ordinance entered into and formed a part of the general verdict in favor of appellee.” That fact is not sufficient in itself. True, a general verdict would cover it, and be sufficient standing alone; but when it affirmatively shows that other facts of controlling importance in producing a verdict entered into it, which have no place in it, and cannot be considered, and the jury is told that they may be, the verdict cannot be upheld. The jury may have found for appellee on the question of contributory negligence, solely by reason of the erroneous charge, under which the question of assumption of risk was ignored, and with which, as the record stands, contributory negligence and proximate cause are inseparably connected. Merriman v. Merriman (1899), 153 Ind. 631.
We think our original opinion was correct upon the record, and the petition is denied.