*4851. 2. *484Appellee brought this action to recover damages for personal injuries sustained by him in a collision between a chemical fire engine, on which he was at the time employed as the driver, and a construction or work car then owned and operated by appellant. The collision occurred at the intersection of Illinois and Maryland streets in the city of Indianapolis at a time when the fire apparatus was being driven south on the west side of Illinois street in response to an alarm of fire. The construction car, which was traveling west on Maryland street, had reached the street intersection ahead of the fire wagon, and had there stopped to permit one of the crew to turn the switch and was proceeding westwardly across Illinois street when the apparatus collided with it and appellee was thrown to his injury. The above facts are not disputed by either of the parties but in determining the issues of law presented by this appeal other circumstances which were in evidence before the jury must be considered. A street sweeper, who was at work near the scene of the accident, testified that when he heard the fire apparatus coming south on Illinois street and noticed the construction car approaching the crossing, he waved his broom before the car as a signal to stop, but the motorman was •looking back and talking to some one in the car and the •witness was unable to get his attention; that the rotary gong on the fire apparatus was sounding so that it could be heard for the distance of a square or more; and that several bystanders shouted to the motorman of the construction car, but he did hot appear to heed their warning. The substance of this testimony is corroborated by several other witnesses and tends to show either that the motorman deliberately ignored the efforts of bystanders to warn him of the approaching fire engine or that he was not giving proper attention to his surroundings as he reached the street crossing. The latter *485conclusion, at least, is strengthened by the motorman’s admission that another piece of fire apparatus had passed him just one square east of the point of collision and that he did not observe in what direction it went on reaching Illinois street. This circumstance was express notice to the motorman that the fire department was responding to an alarm which required its use of the streets at or near the point of collision, and, coupled with the fact that other street cars on Illinois street cut off his view to the north, was proper to be considered by the jury in determining the degree of care which he used under all the circumstances.
As to whether appellee was guilty of contributory negligence, it must be conceded that he was driving his team at a rapid rate of speed through the city streets in response to the alarm of fire, but there is evidence also that his horses were under control as he approached the intersection of Maryland and Illinois streets and that as soon as he saw the construction car cross his path from behind another street car which was standing on Illinois street, he made every effort to turn his team west into Maryland street and avoid a collision but was then unable’to do so. Furthermore, as will herein-after appear, appellee’s conduct is to be measured in the light of certain privileges that were his at the time under and by virtue of two ordinances of the city of Indianapolis which were pleaded specially' in the second paragraph of complaint and introduced in evidence at the trial. One of these ordinances granted “the privilege of the streets of said city” to the fire department, while in the discharge of its duty, on condition that certain regulations were observed as to the equipment of fire engines with warning gongs and as to the use of the same when the apparatus should be traveling at a rapid rate of speed. The other ordinance provided, in *486part, that “should any person or persons hinder or obstruct any city fire' company or hook and ladder company, or any member thereof, from freely passing along the streets of the city, to or from a fire,” he or they should be fined, etc.
3. Relative to the first of these ordinances the trial court; in instruction No. 6 given at the request of appellee, told the jury, in substance, that the violation of a.city ordinance resulting in injury to another is negligence per se and that if it should appear from the evidence that the ordinance in question was in force at the time of appellee’s injury and its provisions were then being observed by the members of the fire department, and that appellee was injured, without his fault, as a proximate result of appellant’s failure to grant him the privilege of the streets, in violation of said ordinance, then the verdict should be for appellee.
The objections urged against this instruction are: (1) That it erroneously construes the ordinance as imposing a duty on appellant, and (2) that it improperly authorized the jury to determine as a matter of law what acts would constitute a violation of said ordinance as well as to pass on the issue of appellant’s guilt in the' commission of such acts. As against the ordinance itself it is suggested that its purpose is not to grant to any one a superior right of way over public streets or to place a duty on other travelers with regard thereto, but only to exempt firemen from the operation of speed ordinances and, possibly, traffic ordinances.
4. *4873. 5. *486It must be borne in mind, however, that the decided weight of authority is to the effect that ordinances limiting or regulating the speed of travel through city streets are not applicable to vehicles of the fire department on their way to fires, even without express provision to that effect. Kansas City v. McDonald (1899), 60 Kan. 481, 483, 57 Pac. 123, 45 *487L. R. A. 429; State v. Sheppard (1896), 64 Minn. 287, 67 N. W. 62, 36 L. R. A. 305; Farley v. Mayor, etc. (1897), 152 N. Y. 222, 227, 46 N. E. 506, 57 Am. St. 511; Toledo R. etc., Co. v. Ward, Admx. (1903), 25 Ohio Cir. Ct. Rep. 399, 404; Chicago City R. Co. v. McDonough (1905), 125 Ill. App. 223, 237. To adopt that construction of the ordinance which is suggested above would be to say that its passage was a use- - less act. Furthermore, the contention that such construction of the ordinance is made imperative by the fact that it prescribes no penalty for its violation is not properly presented by the record as it comes to this court. Although cases may be found which hold that a municipal ordinance which»imposes obligations but provides no penalty for its' violation is void, the trend of modern decisions is toward the rule that the penalty, though usually' and more properly fixed by the ordinance itself, may, in certain instances, be supplied or moré clearly defined by reference to general or statutory provisions of the law applicable to the subject-matter, and, in any event, there can be no doubt that the penalty may be prescribed in a section of the ordinance other than the one which declares the offense. Cooper v. City of Gadsden (1914), 10 Ala. App. 609, 612, 65 South. 715; Blake v. Pleasantville (1915), 87 N. J. Law 426, 429, 95 Atl. 113; Brunker v. Corporation Tp. (1893), 22 Ont. 120, 124; Brown v. Toledo (1900), 7 Ohio N. P. 435.
6. 7. On the other hand, the general rule is well settled that courts do. not take judicial notice of ordinances of incorporated towns and, where suit is predicated on such an ordinance, so much of the same as relates to the action must be made a part of the complaint. Clevenger v. Town of Rushville (1883), 90 Ind. 258, 260. Similarly, matters of defense which touch the scope of such ordinance *488or its sufficiency as a foundation for the action must first be specially presented in the trial court by motion, demurrer or answer. Since we do not know judicially whether another section of the ordinance in question prescribes a penalty for its violation, we may not pass on the point suggested by counsel but need only determine whether the construction placed on that ordinance by the trial court in instruction No. 6 may properly be sustained under the facts shown by the record.
3. The instruction, in its phraseology, follows closely the language of.the ordinance but, taken as a whole, clearly interprets its provisions as granting to the fire department a right of way over the city streets when responding to an* alarm of fire. While this purpose might readily have been stated in more definite terms, the word “privilege” is one of broad meaning and, when considered in connection with' the other provisions of the ordinance, so far as they appear, it is open to the interpretation given to it by the trial court. In fact, appellant’s instruction No. 3, which was given to the jury, contains a tacit admission that the ordinance might operate as a grant to the fire department of a superior right of way, and for the purposes of this appeal, at least, it must be so construed. That construction leads to the obvious corollary that the ordinance places on other users of the street a duty to yield the same for the passage of fire apparatus, and a violation of that duty is negligence per se. Public Utilities Co. v. Handorf (1916), 185 Ind. 254, 112 N. E. 775, 778; Pittsburgh, etc., R. Co. v. Lightheiser (1906), 168 Ind. 438, 453, 78 N. E. 1033; McBride v. Des Moines City R. Co. (1907), 134 Ia. 398, 109 N. W. 618; Geary v. Metropolitan St. R. Co. (1903), 84 App. Div. 514, 82 N. Y. Supp. 1016; Warren v. Mendenhall (1899), 77 Minn. 145, 79 N. W. 661.
*4898. *488Our conclusions above stated, in their effect, serve to *489dispose of appellant’s second objection to the instruction under consideration, since they make clear the fact that said instruction authorized the jury to determine four issues only: (1) Whether the ordinance was in force at the time of the accident; (2) whether its provisions were being observed by the members of the fire department; (3) whether appellant’s employes failed to yield the right of way to appellee; and (4) whether appellee’s own conduct proximately contributed to his injury. Each of these issues presented a question of fact.
9. Instruction No. 7 given at the request of appellee, has reference to the second of the ordinances relied on in the complaint and told the jury that if they should find that said ordinance was in force and effect at the time of appellee’s injury and should further find “that the defendant did negligently obstruct this plaintiff while driving his said chemical engine along a street of said city, while going rapidly to a fire,” they should find appellant guilty of negligence and return a verdict for appellee unless it should appear that he was guilty of contributory negligence. Much that has been said in our discussion of instruction No. 6 is applicable to a consideration of instruction No. 7, particularly as to thé scope of the ordinance in question, but the -further objection is made against this instruction that it authorizes a recovery for appellee even though it should appear that the obstruction of Illinois .street by appellant’s work car was innocent in character and resulted from lack of knowledge on the part of the motorman that the fire apparatus was using Illinois street at’ the time, and from the further fact that after he saw the approaching fire engine he was prevented by other vehicles in the street from either backing his car or moving it forward. We need not decide whether such a defense, if proved, would defeat a recovery. The ordi*490nance is clearly open to the interpretation that a failure to grant a right of way to a vehicle of the fire department might constitute an “obstruction” thereof, within the meaning of its provisions, but it must be noted in this case that the instruction as given requires proof of a negligent obstruction before appellee would be entitled to a verdict. This instruction must be construed in connection with instruction No. 2, given at the request of appellee, which, in general terms, properly defines negligence as “the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person, under the existing circumstances, would not have done.” So construed, the instruction charged the jury that before appellant could be found guilty of a violation of this particular ordinance, it must appear that its obstruction of Illinois street was the result of a failure on the part of its motorman to use due care under all the circumstances. Certainly, appellant should ask no more.
10. In much of their argument against the instructions which we have already considered counsel for appellant fail to take into consideration the fact that while, in each instance, the phraseology of the instruction is somewhat general and might properly have been made more specific, yet neither instruction, as it stands, assumes to state an erroneous proposition of law. In order, then, to make the infirmities, if any, available on appeal, counsel must first have requested a more specific charge and, in the event of its refusal, assigned error on such ruling. Cincinnati, etc., R. Co. v. Gross (1917), ante 471, 114 N. E. 962, 964; Crawfordsville Trust Co. v. Ramsey (1912), 178 Ind. 258, 275, 98 N. E. 177; Pittsburgh, etc., R. Co. v. Lightheiser, supra; Indiana Union Traction Co. v. Cauldwell (1905), 59 Ind. App. 513, 516, 107 N. E. 705.
*49111. 12. Objection is made to the refusal of the trial court to give appellant’s tendered instruction No. 7, but a consideration of this objection is technically waived through the absence of a reference thereto in appellant’s propositions and authorities. However, it may be observed that the instruction was properly refused for the reason that it confined the violation of the “obstruction ordinance” to wilful or intentional interference with fire apparatus. Proof of negligence on the part of a defendant, independent of the question of intent, would be sufficient to establish a violation of the ordinance and to create a liability in favor of one who was injured as a result of such negligence without fault on his part. Cleveland, etc., R. Co. v. Tauer (1911), 176 Ind. 621, 624, 96 N. E. 758, 39 L. R. A. (N. S.) 20; State v. Baltimore, etc., R. Co. (1889), 120 Ind. 298, 300, 22 N. E. 307; Indianapolis Traction, etc., Co. v. Beck (1914), 57 Ind. App. 527, 530, 108 N. E. 153; Hamilton v. State (1899), 22 Ind. App. 479, 486, 52 N. E. 419; Erickson v. Great Northern R. Co. (1912), 117 Minn. 348, 352, 135 N. W. 1129, 39 L. R. A. (N. S.) 237, Ann. Cas. 1913 D 763; 8 R. C. L. 62, §12.
13. Instruction No. 5, given at the request of appellee, is challenged on the ground that it was not applicable to the evidence. The instruction contains a general charge as to the care and diligence required of street car motormen in the operation of their cars and then points out the application of the rule stated if it should appear from the evidence that appellee’s position of danger, as he approached the street crossing, was, or, under the circumstances, should have been seen by appellant’s motorman in time to have stopped his car and prevented the collision. Appellant is in no position, however, to complain of the error, if any, in this instruction for the same principle of law is *492similarly embodied in instruction No. 9 given at appellant’s request. Hart-Kraft Motor Co. v. Indianapolis Motor Car Co. (1915), 183 Ind. 311, 318, 109 N. E. 39; Cleveland etc., R. Co. v. Simpson (1914), 182 Ind. 693, 710, 104 N. E. 301, 108 N. E. 9.
14. 15. *49316. 17. *492Appellant’s contention that the verdict of the jury is not sustained by sufficient evidence and is contrary to law, in so far as the same is not already met by our conclusions above set out, may best be disposed of through a statement of certain principles of law which are applicable in cases of this character: (1) The rule of the road in relation to vehicles approaching a street crossing, viz., that the first to reach the crossing, traveling at a reasonable rate of speed, has the right to pass over first, applies to fire apparatus and street cars, in the absence of legislative enactment, municipal regulation, or local custom. Knox v. North Jersey St. R. Co. (1904), 70 N. J. Law 347, 57 Atl. 423, 1 Ann. Cas. 164; 2 Nellis, Street Railways (2d ed.) §388. (2) The fact that the driver of a fire engine has the right of way does not excuse or exempt him from the duty to exercise due care and prudence in driving his team on or across a street railway track. Birmingham R., etc., Co. v. Baker (1899), 126 Ala. 135, 140, 28 South. 87; Garrity v. Detroit Citizens’ St. R. Co. (1897), 112 Mich. 369, 371, 70 N. W. 1018, 37 L. R. A. 529. (3) But, as ordinary care is care commensurate with the occasion, his conduct is to be measured by the exigencies of the situation. Warren v. Mendenhall, supra; Consolidated Traction Co. v. Chenowith (1898), 61 N. J. Law 554, 560, 35 Atl. 1067; Hanlon v. Milwaukee Elec. R., etc., Co. (1903), 118 Wis. 210, 217, 95 N. W. 100; Magee v. West End Street R. Co. (1890), 151 Mass. 240, 242, 23 N. E. 1102; Flynn v. Louisville R. Co. (1901), 110 Ky. 662, 669, 62 S. W. 490; Farley v. Mayor, etc., supra; City of New *493York v. Metropolitan St. R. Co. (1904), 90 App. Div. 66, 70, 85 N. Y. Supp. 693. (4) And whenever there exists a law or ordinance giving fire apparatus the right of way in the public streets when responding to an alarm of fire, that fact has a material bearing on the question of the contributory negligence of the driver of a fire engine who is injured in a collision of such apparatus with a street car, since he will be presumed to be familiar with such law or ordinance and is justified in assuming that the same will be observed by the street car motorman on discovering the approach of the fire engine. Geary v. Metropolitan St. R. Co., supra; Theisen v. Detroit United Railway (1910), 163 Mich. 68, 71, 127 N. W. 708; Hanlon v. Milwaukee Elec. R., etc., Co., supra; McKernan v. Detroit, etc., R. Co. (1904), 138 Mich. 519, 524, 101N. W. 812, 68 L. R. A. 347; Pennsylvania Co. v. Stegemeier, Admx. (1889), 118 Ind. 305, 309, 20 N. E. 843, 10 Am. St. 136; McBride v. Des Moines City R. Co. supra; Taylor v. Metropolitan St. R. Co. (1912), 166 Mo. App. 131, 134, 148 S. W. 470; Chicago City R. Co. v. McDonough (1906), 221 Ill. 69, 74, 77 N. E. 577; Evansville, etc., R. Co. v. Berndt (1909), 172 Ind. 697, 702, 88 N. E. 612; City of New York v. Metropolitan St. R. Co., supra, 69. (5) The negligence of the driver, if any, is, under such circumstances, a question to be determined by the jury. O’Neill v. St. Louis Transit Co. (1904), 108 Mo. App. 453, 457, 83 S. W. 990; Consolidated Traction Co. v. Chenowith, supra; Farley v. Mayor, etc., supra; Hanlon v. Milwaukee Elec. R., etc., Co., supra, 218. The principles above stated were, in their substance, properly embodied in the instructions given to the jury, and there is evidence on each issue of fact presented by the pleadings which is sufficient to sustain the findings in favor of appellee. Birmingham R., etc., Co. v. Baker (1901), 132 Ala. 507, 518, 31. *494South. 618; Hanlon v. Milwaukee Elec. R., etc., Co., supra; Warren v. Mendenhall, supra.
The remaining questions presented by the appeal have reference to the measure of damages and arise on appellant’s objections to instruction No. 8, given at the request of appellee. This instruction enumerates and authorizes the jury to consider each of the several elements of damage which are set forth in the complaint, so far as the same is sustained by proof, and includes appellee’s “physical and mental suffering already endured, if any,” and “all expenses incurred necessarily in attempting to effect a cure of said injuries, if any.” Appellant takes the position: (1) that instruction No. 8 erroneously fails to limit the character or cause of the mental suffering for which recovery is authorized; and (2) that there is no evidence to show the amount of the expenses, if any, which were incurred by appellee in attempting to effect a cure of his injuries.
18. 19. The first objection, however, is directed against an isolated clause in the instruction and may be considered only in connection with the general charge, expressly applicable to each element of damage, which required proof that the mental and physical suffering, if any, was “a direct and proximate result of the defendant’s negligence as charged in the complaint.” So considered, this branch of the instruction is fully sustained by the opinion in Indianapolis St. R. Co. v. Ray (1906), 167 Ind. 286, 248, 78 N. E. 978, which is the only authority relied on by appellant in support of its objection, and by the following cases: Cleveland, etc., R. Co. v. Lynn (1911), 177 Ind. 311, 325, 95 N. E. 577, 98 N. E. 67; Vandalia Coal Co. v. Yemm (1910), 175 Ind. 524, 540, 92 N. E. 49, 94 N. E. 881; Wabash, etc., R. Co. v. Morgan (1892), 132 Ind. 430, 438, 31 N. E. 661, 32 N. E. 85; *495Evansville Hoop, etc., Co. v. Bailey (1908), 43 Ind. App. 153, 161, 84 N. E. 549.
20. 21. The second objection to this instruction is based on appellant’s contention that although the evidence indicates that appellee employed physicians and made other efforts to effect a cure of his injuries, there is no evidence as to the amounts, if any, which he expended or as to the obligations which he may have incurred on account of such efforts. Conceding this view of the record, we are not unmindful of decisions that seem to sustain the proposition that instructions authorizing a recovery for elements of damage which come within the issues, but are not established by proof, are presumptively harmful. On the other hand, authority is even more abundant in support of the rule that the jury will not be presumed to have awarded compensation for a loss not fully shown by the evidence. The latter presumption is at least not inferior in its importance and should not give way to the former, however applicable in a proper case, unless the record presents strong evidence that the jury based its award, in part, at least, on an element of damage which required definite proof and, in so doing, must necessarily have entered the realm of speculation. On reference to the record in this case it appears that the third ground of appellant’s motion for a new trial challenged the assessment of damages as excessive. This specification of the motion required the circuit court to examine carefully the evidence on the question of damages and if, in its opinion, the award was not fully sustained by proof actually before the jury, a new trial should have been granted or a remittitur ordered. The presumption in favor of correct action on the part of the trial court is one of the strongest presumptions applicable to the consideration of a cause on appeal and is of particular importance in determining *496questions which, affect the weight or sufficiency of the evidence to sustain each issue of the jury’s verdict. Cincinnati, etc., R. Co. v. Madden (1893), 134 Ind. 462, 469, 34 N. E. 227; Christy v. Holmes (1877), 57 Ind. 314.
22. 23. 24. *49725. *496If an instruction on the measure of damages erroneously authorizes a recovery for elements of loss which are outside the issues, the conclusion may rightly follow that the same error of law has influence^ the trial court’s decision as to the sufficiency of the evidence to sustain the award, or, in case the amount of the verdict is such as plainly to indicate prejudice, partiality or other undue influence, that fact will negative the presumption that the evidence was properly reviewed in passing on the motion for a new trial. In the present case, however, it must be noted that although appellant’s motion contains a specification that the damages assessed by the jury are excessive, that specification is abandoned in the statement of errors here relied on for a reversal. Judy v. Woods (1912), 51 Ind. App. 325, 327, 99 N. E. 792. This fact operates as a waiver of any contention that the award of the jury must have been influenced by prejudice, partiality, corruption or other improper motive (Knight v. Lee [1881], 80 Ind. 201, 207), and authorizes a full application of the presumption that the trial court has reviewed the evidence on the question of damages and found that the verdict is properly sustained thereby. Where, as in this case, the jury is instructed that it may allow compensation for expenses, if any, .necessarily incurred by the plaintiff in attempting to effect a cure of his injuries, the charge, in effect, prohibits such allowance unless said expenses and their amounts are shown by the evidence, and the presumption is that the jury so understood the instruction. Conrad v. Cleveland, etc., *497R. Co. (1904), 34 Ind. App. 133, 137, 72 N. E. 489. The true rule, then, is that if the instruction is within the issues tendered by the pleadings and the trial court appears properly to have determined as an.issue of fact that the award is not excessive, it will be presumed on appeal that such award is in accord with the evidence and the error, if any, in the instruction will be deemed harmless, in .the absence of express showing to the contrary. Cleveland, etc., R. Co. v. Lynn, supra; Thomas Madden, Son & Co. v. Wilcox (1910), 174 Ind. 657, 669, 91 N. E. 933; Ohio, etc., R. Co. v. Stein (1894), 140 Ind. 61, 70, 39 N. E. 246; Chicago, etc., R. Co. V. Roth (1915), 59 Ind. App. 161, 166, 107 N. E. 689, 108 N. E. 971; Cleveland, etc., R. Co. v. Clark (1912), 51 Ind. App. 392, 416, 97 N. E. 822; Indianapolis Traction, etc., Co. v. Ulrick (1909), 45 Ind. App. 149, 90 N. E. 321; 2 R. C. L. 199, §170; 4 C. J. 781, §2732.
No error appearing in the record, the judgment of the circuit court is affirmed.
Lairy, C. J., dissents.