On Petition for Rehearing.
Myers, J.The able counsel for appellant have presented a brief on petition for a rehearing, in which their position on the “look and listen” rule is much more clearly presented than in their original brief, their contention being that by the original opinion in the case, the rule of look and listen is abrogated, and if that reasonably can be said to be its construction or effect, their position is well taken, though the court had no idea of that bind, or no suspicion of that construction or effect, because we recognize the rule in all its established force, and had no idea of abandoning it, or limiting it, and if that construction is permissible, it is because *329the court misapprehended the situation and the force of the conclusions as stated.
¥e set out in the original opinion the fourth, fifth, and sixth instructions, which at that time we were unable to see abrogated the “look and listen” rule, and after a reexamination we are of the same opinion.
The specific objection is, that they do not require attentive looking and listening, which, as a matter of law, is required, and that the term “ordinary care” is not broad enough to require looking and listening attentively, and that the jury should have been instructed that a traveler in crossing a railroad track is bound to anticipate danger and to look and listen attentively.
Appellee was not an ordinary traveler. He was a workman engaged in the performance of the duties then in hand at that place and while that could not excuse him from looking and listening, yet the character of his duties, and the attention they required, are not to be lost sight of.
15. The same degree of caution is not required of one whose duties on or about a railroad track require his crossing, as in case of one who is discharging no duty, and is purely a traveler. The attention of the former is necessarily drawn to his work and duties, while the latter owes no duty arising from employment, and simply exercises an independent right of crossing, accompanied by the legal requirement on him, but unaccompanied by any other consideration, to guard his own safety.
The rule does not apply in all its strictness to the former class of persons as to the latter. Cleveland, etc., R. Co. v. Morrey (1909), 172 Ind. 513, 88 N. E. 932; Pittsburgh, etc., R. Co. v. Lightheiser (1907), 168 Ind. 438, 78 N. E. 1033; Chicago, etc., R. Co. v. Vandenberg (1905), 164 Ind. 470, 480, 73 N. E. 990; Pittsburgh, etc., R. Co. v. Seivers (1904), 162 Ind. 234, 243, 67 N. E. 680, 70 N. E. 133; Baltimore, etc., R. Co. v. Peterson (1901), 156 Ind. 364, 59 N. E. 1044.
Appellee was not the servant of appellant, charged with *330assumption of the risk; but the watch-house, which was being placed, was for the joint use of appellant and another parallel road; the watchman who used it watched all the tracks at that street crossing, some sixteen or seventeen, and in its being placed, we must assume that appellee was where he had a right to be, and was where he was by invitation or permission of appellant, and was entitled at least to the protection which ringing a bell or giving other signals would furnish, and the duty to exercise ordinary care was required of each.
If the fourth, fifth and sixth instructions absolve appellee from the duty of looking and listening, our former opinion is erroneous, but we do not so understand them, or that they relax the rule in the least.
The only qualification of it that they make is that looking and listening is not required as a matter of law, at any particular place or in any particular direction, and that is settled by the former appeal.
The ease of Pittsburgh, etc., R. Co. v. Seivers, supra,, has some features common to this case, but with this difference, that it is shown that Gaby, appellee’s decedent, did not look at all, while here it appears that appellee did look.
True, he was not at work on the tracks, and it was his duty to look and listen, but he was in a somewhat different situation from an ordinary traveler at a crossing, in that his work occasioned him to cross said tracks, and it was both his right and his duty to do so, and the question, as we conceive it to be, is, Did he use that care and make that use of his senses of sight and hearing proportionate to the danger to be avoided, and the consequences which might result from that neglect, which an ordinarily prudent man under the circumstances should use? If so, that, after all, is the law’s interpretation of ordinary care. Republic Iron, etc., Co. v. Ohler (1903), 161 Ind. 393, 401, 68 N. E. 901; Louisville, etc., R. Co. v. Schmidt (1897), 147 Ind. 638, 46 N. E. 344; Lake Erie, etc., R. Co. v. Stick (1896), 143 Ind. 449, 41 *331N. E. 365; Cincinnati, etc., R. Co. v. Duncan (1896), 143 Ind. 524, 528, 42 N. E. 37; Smith v. Wabash R. Co. (1895), 141 Ind. 92, 99, 40 N. E. 270; Lake Shore, etc., R. Co. v. McIntosh (1895), 140 Ind. 261, 270, 38 N. E. 276; Pennsylvania Co. v. Horton (1892), 132 Ind. 189, 193, 31 N. E. 45; Cleveland, etc., R. Co. v. Harrington (1892), 131 Ind. 426, 433, 30 N. E. 37; Stewart v. Pennsylvania Co. (1892), 130 Ind. 242, 29 N. E. 916; Ohio, etc., R. Co. v. Hill (1889), 117 Ind. 56, 60, 18 N. E. 461; Toledo, etc., R. Co. v. Goddard (1865), 25 Ind. 185,197; Aurelius v. Lake Erie, etc., R. Co. (1898), 19 Ind. App. 584, 591, 49 N. E. 857.
In Malott v. Hawkins (1902), 159 Ind. 127, 134, 63 N. E. 308, it is said: “In cases of this character, a trial court should not, in instructing the jury upon the duty of the person injured or killed, stop with the generality that such person was required to use ordinary care for his own safety, but it should instruct the jury as to some, at least, of the duties of a person about to cross a railway track upon a highway.” That, as we understand it, was done by the court in the fourth, fifth and sixth instructions.
In that case too, following Cleveland, etc., R. Co. v. Harrington, supra, and Chicago, etc., R. Co. v. Thomas (1900), 155 Ind. 634, 58 N. E. 1040, it was affirmed that “it is not ordinarily possible, however, to affirm, as a matter of law, the precise number of feet from the crossing at which a traveler must look and listen, the underlying test being, did the traveler exercise ordinary care, in view of the danger, in selecting the place?” And that is the precise question here urged, that is, that appellee did not select the right place to look, and that question was also determined on the former appeal.
16. If appellant had desired an instruction on the subject of the law’s presumption as to one’s hearing and seeing what ought to be seen and heard, or what he is in a position to see or hear, and its effect in an individual case, or as to specific requirements as to looking and listening, *332it should have tendered an instruction on the point. The nearest approach to it is hy the sixteenth instruction, which, in effect, is no broader on these points than those given, and is incorrect upon other grounds.
On the question of hearing, it appears that on the second' track east of the one on which appellant was injured, a freight-train was traveling in the direction from which the train which injured plaintiff was coming, and the noise of the two trains may not have been distinguishable.
As to the question of looking, it is in evidence that appellee did look when at a point from which he could see from 250 to 300 feet. If he had looked from a point six or eight feet further east, he could have seen 2,700 feet,
"With the proposition settled on the former appeal, that appellant was not required to look in any particular direction at any particular time, there seems no escape from the proposition that whether he should have seen the train was a question for the jury.
This is necessarily so, unless the court can say, as a matter of law, that ordinary care at a crossing does not involve looking or listening, or that looking and listening is something more than, or apart from, ordinary care.
It seems to us that the latter proposition is the correct one. Stated conversely: If neither looking nor listening be present, ordinary care, as a matter of law, has not been observed. If they be present, it is still a question for the jury, whether they were from points or under circumstances where they would or should be available as notice of a coming train, by reason of the difference between an inference of fact and a presumption of law.
As to the fact, there is no presumption, but a matter of evidence and proof, with the burden of proof on appellant.
17. It is a pure presumption of law, that one sees and hears what he is in a position to see and hear, and which. in the absence of evidence which overrides it, will prevail.
*333In Justice v. Lang (1873), 52 N. Y. 323, it is said: “Presumptions of law are, in reality, rules of law and part of the law itself; and the court may draw the inference whenever the requisite facts are developed, * * * while all other presumptions, however obvious, being only inferences of fact, cannot be made without the intervention of a jury [Best, Presumptions 18].” See, also, Cook v. Dowling (1893), 26 N. Y. Supp. 764, 6 Misc. Rep. 271.
In 2 Chamberlayne, Mod. Law of Ev. §1018, it is said: “The burden of proof properly so called, is not affected in the least by the creation of a presumption of law,” citing numerous cases. See, also, 2 Chamberlayne, Mod. Law of Ev. §1082 and note, where the distinction is drawn between presumptions of law and inferences of fact.
An inference of fact may be drawn from another fact or other facts, but a presumption of law is drawn from a particular undisputed fact, or as a conclusion of the law itself, or as is said in Justice v. Lang, supra, “the presumption of the existence of one fact from the existence of another fact, is within the exclusive province of the jury. ’ ’ That is, that a fact otherwise doubtful may be inferred from a fact which is proved; a fact inferred from a fact—but a presumption of law is not founded on a fact deduced by inference, but upon an established fact, on which the law founds its own inference. If these be correct principles, we have a case where appellee did look, but, as claimed, not from the right place in order to see fully, and we are asked to apply the presumption of law that he did see, or should be held to have seen, while, on the other hand, we have the rule of inference of facts as a question for the jury.
If the jury had drawn the inference that he did see, or that he ought to have seen, it would have been conclusive on appellee, and conversely, the general finding covers the inference of fact that he was not bound to see.
The opinion on the former appeal, as it seems to us, covers the question presented by the court’s refusal to give the *334fourteenth and fifteenth instructions, which present the question of the obstruction made by the watch-house appellee placed, and appellee’s duties in the premises.
Instruction sixteen, refused, does not attempt to advise the jury as to the elements of ordinary care, but advises it, in substance, that if appellee selected the wrong place to look from, he would not have exercised reasonable and ordinary care for his safety, and would be guilty of negligence, precluding a recovery, and is too restricted, especially in view of the holding on the former appeal.
Instruction twenty, refused, was directed to the question of the increased care required of appellee, because the watchman was not at his place of duty.
The evidence shows that this watchman had charge of some sixteen or seventeen tracks. It is shown that appellee was a stranger to the crossing, did not know where the watchman’s place was, nor does the evidence show where it was the latter’s duty to be. The instruction, therefore, was not applicable to any evidence in the case.
14. Counsel again vigorously attack the sufficiency of the evidence, claiming an impossible liability under appellee’s statement of the occurrence.
If the train was running thirty miles an hour, the highest rate fixed by a number of witnesses, it was traveling forty-four feet each second, six seconds would have put it out of range of 264 feet; five seconds would have put it within a range of 220 feet. If appellee could see only 250 feet, less than six seconds brought the train within that range of vision.
The record does not disclose any finding of the jury as to the rate at which the train was running, and on the former appeal it was said: “But assuming that the train approached said crossing at the rate of thirty miles an hour, it would traverse the distance of 250 feet in less than six seconds, and, in view of the time required to look and listen for trains from the south, and to walk from the watch-house *335to the track, we do not think that we can say that the train was within the space of 250 feet when appellee looked in that direction, nor that he loitered in his efforts to cross. ’ ’
With this proposition as the law of the case, there eonld be but one other question arising on the evidence, and that is as to the evidence of appellee that he could not see more than 250 or 300 feet because of the watch-house, and whether he was excused from looking after passing beyond the watch-house, and that question is settled by the former appeal, unless the refusal to give instruction twenty-seven was erroneous.
12. Instruction twenty-seven was identical with instruction nineteen, set out in the opinion on the former appeal.
The instruction is too broad, in that it practically instructs that appellee would be guilty of contributory negligence in failing to see because of the shanty; in other words, that under no circumstances could he recover if the shanty caused an obstruction which prevented him from seeing at a particular point. Manifestly the questions of how far he could or did see from the point he looked, and the lapse of time thereafter until he was struck, are approximations, which may have varied either way.
We do not feel justified in disturbing the judgment upon the evidence, after again reviewing it.
Error was urged in the original brief in the amount of the recovery.
Interest on this judgment would produce a third more than he could earn if he worked every day in the year, during his expectancy, besides having the principal now, and while the elements of pain and suffering cannot, and should not be measured with a fine distinction, we are constrained to the belief that the judgment is too large, when we consider that compensation is the rule for assessing damages.
If appellee will remit $3,000 of the judgment, as of the date of the’ return of the verdict, within fifteen days, the *336petition for a rehearing will be refused, otherwise a rehearing will be granted.
Note.—Reported in 95 N. E. 577 and 98 N. E. 67. See, also, under (1) 33 Cyc. 1003; (2 and 3) 33 Cyc. 1053; (4) 33 Cyc. 1060; (5) 33 Cyc. 1010; (0 and 7.) 33 Cyc. 1140; (8 and 9) 38 Cyc. 1809; (10) Cyc. Anno. (1913) 3220; (11) 38 Cyc. 1612; (12) 33 Cye. 1136; (13) 38 Cyc. 1633; (14) 33 Cye. 1087; (15) 33 Cyc. 831; 37 L. R. A. (N. S.) 136 (16) 38 Cyc. 1693; (17) 33 Cyc. 1073. As to contributory negligence of persons not looking for the approach of cars, see 51 Am. Rep. 300.