Dissenting Opinion.
Lairy, C. J.I am of the opinion that the petition for rehearing ought to be granted and that the judgment appealed from should be reversed.
The majority opinion states the objections urged to instruction No. 6 as being: (1) That it erroneously construes the ordinance as imposing a duty on appellant as one of the users of the streets; and (2) that it improperly authorizes the jury to determine as a matter of law what acts would constitute a violation of the *498ordinance as well as to pass on appellant’s guilt in the commission of such acts.
As to the first of these objections, the principal opinion holds that the ordinance may be properly construed as granting to fire companies while going to a fire or returning therefrom a right in the' streets superior to that of others using the streets in the ordinary way, and that as a corollary it imposes the duty on others using the streets to so regulate their use of such streets as to respect the superior right of such fire companies. The writer is of the opinion that such a company under the circumstances stated has a superior right in the use of the streets at common law by reason of the urgency and importance of its mission and the necessity for haste in reaching the place of the fire, and that the ordinance in question does not enlarge its rights in this respect but requires the giving of certain specified signals as an incident to the exercise of the right. However, it can make no material difference whether the superior right of the fire company in the use of the streets exists at common law or whether it is conferred by the ordinance, as the effect would be the same in either case; and for this reason no fault can be found with the majority opinion in so far as it holds that fire companies have such superior right. The effect would be to require other persons using the streets to recognize the superior right of the fire company and to impose upon them the duty of exercising reasonable care to conform their conduct to the use thus recognized. At common law ordinary care in the performance of this duty would require them to do such acts and to observe such precautions as persons of ordinary prudence would deem proper under like circumstances, having in view the superior rights of the fire company. What particular acts of care or precaution should be observed in the exercise of due care in a particular case must gen*499erally be a question of fact for the jury and not one of law for the court. An ordinance may require that a particular act must be done or that a specified precaution must be observed and thus remove the act or precaution-specified from the realm of fact and place it in the realm of law. When an ordinance does this, the court can say that the ordinance requires the performance of the acts and the observance of the precautions specified, and that a failure to comply with the ordinance in those particulars is negligence as a matter of law, or negligence per se; but unless the ordinance does specify some particular act or precaution the common law applies, and it remains in the province of the jury to find what acts or precautions ordinary care required.
The standard of care fixed by the common law is “ordinary care” — that is, such care as persons of reasonable prudence would use under like circumstances. As to what particular acts or precautions would constitute ordinary care under any given state of circumstances and conditions, is, as a general rule, a question of fact for the jury and not one of law for the court. To this rule there are some recognized exceptions which are not material here. Negligence becomes a matter of law when a statute or ordinance has fixed a certain and definite standard of care other than that required at common law. An ordinance which is so indefinite that the court cannot say what specific acts or conduct is required to comply with its terms cannot be said to fix a standard of care different from the common-law standard. Such an ordinance or statute cannot serve as a basis upon which to predicate negligence per se. It does not change the common law, and negligence at common law is generally a question of fact. By the common law, the defendant was required to employ such acts and precautions as ordinary care required under the existing circumstances and conditions and the ordi*500nance required nothing more. To say that the ordinance required others using the streets to yield to the superior right of the fire company and thus grant the privilege of the street means nothing more than that they were required, as at common law, to exercise ordinary care to that end, in the absence of some specific provision in the ordinance defining what acts should be done or what precautions should be observed. It cannot be supposed that the ordinance was intended to mean that. all other persons using the street should abandon it" on the approach of fire apparatus so as to give an absolutely free and unobstructed street for its passage. Every person, vehicle and street car in the street, whether moving or standing, interferes to some extent with the free use of the street by others. It would be unreasonable to hold that the ordinance required all traffic to vacate in order to allow fire apparatus the privilege of an unobstructed street; and yet, if it does not require that, what does it require? Can the court define its requirements ? If not it is too indefinite to be made the basis of a charge of negligence per se. The jury cannot be permitted to define its requirements and then determine that it was violated. The ordinance does not specify any act which shall be done, and therefore the court cannot direct the attention of the jury to any act and direct them that the failure to observe it is negligence. Unless the court can tell the jury what acts or precautions an ordinance requires, it cannot rightly state as a matter of law that a violation of the ordinance constitutes negligence. Under such a state of the case, negligence was a question of fact for the jury and not one of law for the court.
This instruction does assume that the ordinance under consideration required the defendant to do some act or to observe some precaution, not required at common' law, in order to grant to the fire company the *501free use of the street and states that if it violated the ordinance in this respect it was' guilty of negligence as a matter of law. It does not attempt to tell the jury what the ordinance required defendant to do in order to comply with its terms, but it leaves the jury to determine what the ordinance required the defendant to do in order to grant the privilege of the street to the fire company. If the court could not tell what the ordinance required in this respect, it should not have submitted the question to the jury so as to allow it to make a guess. The court should never submit the meaning or .construction of an ordinance to a jury. I am of the opinion therefore that the instruction is open to the second objection pointed out in the prevailing opinion, namely, that it erroneously submitted a question of law to the jury for its determination, and authorized the jury to determine what acts were required by the ordinance and what acts would constitute a violation of its terms.
If appellant was guilty of negligence in this case, it was because it failed to observe ordinary care at common law, and not by reason of its failure to observe the terms of the ordinance under consideration. The prevailing opinion points out two objections to instruction No. 6 and goes into quite a lengthy discussion in disposing of the first one, the holding being that the ordinance may be properly construed as granting to • fire companies a superior right in the street and that as a corollary to such right a duty was imposed on others using the street to recognize this right and to use ordinary care with reference to such'superior right. I have no objection to find with the result reached by the majority of the court in holding that the instruction is not erroneous in placing such a construction on the ordinance. This phase of the question has not been regarded as of serious importance, but the question raised *502by the second objection pointed out is serious. The prevailing opinion disposes of this question in- one short paragraph. .It states that the conclusions reached in disposing of the first question serve to dispose of the second objection, since they make it clear that the instruction authorized the jury to determine only issues of fact. The third issue of fact thus submitted as designated in the majority opinion was: “whether appellant’s employes failed to yield the right of way to appellee in compliance with the ordinance.” This question, however, involves the decision of a question of law — namely, what acts or precautions did the ordinance require of appellee in order to yield the right of way to the fire department, or, in other words, what did the ordinance require appellant to do in order to comply with its terms in that respect? This was a question of law to be determined by the court from the language of the ordinance and it should not have been submitted to the jury. Before the jury could possibly decide whether the defendant’s servants had done the things required by the ordinance, it wo'uld of necessity have to determine what the ordinance by its terms required. If the ordinance by its terms required any specified thing to be done, the court should have told the jury what it was and should then have left it to the jury to say whether or not it had been done; but, if the ordinance required nothing more specific than the requirements of the common law, then the court should have submitted the question of defendant’s negligence to the jury as a question of fact to be determined from a consideration of what ordinary care required irrespective of the ordinance. The error is not a harmless one. The instruction gave the jury to understand that the ordinance by its terms required appellant to do something other or different from what the common law required, and that the failure on the part of the de*503fendant to do the thing which the ordinance required made it guilty of negligence as a matter of law.
The prevailing opinion sets out a portion of the evidence most favorable to appellee. There has never been any doubt as to the sufficiency of the evidence to sustain a verdict in favor of appellee based on common-law negligence, and that is not the question which the opinion discusses or decides. The principal question decided is the correctness of an instruction. The evidence set out could be of no value in determining whether the instruction was correct or erroneous. It is true that the evidence may be of such a character as to show that an erroneous instruction was not prejudicial, but that is not the purpose of setting out the evidence in this opinion. The opinion holds that the instruction ■is correct and not erroneous, and no attempt is made to show that the error pointed out, if conceded to be error, was harmless. If it could be shown that the error to which I have called attention did not affect the verdict, I would gladly agree to an affirmance of the judgment; but I cannot agree to an opinion which holds the instruction under consideration to be a correct statement of the law. To my mind, the court in giving this instruction lost sight of the line of demarcation which divides the duties of the court from the province of the jury. The principles which define the powers of the court and distinguish them from those of the jury are so important that they cannot be ignored without destroying the very foundation upon which all jury trials rest. I am of the opinion that instruction No. 6 was erroneous and prejudicial and that the giving of such instruction constituted reversible error.
I am also of the opinion that reversible error was committed by the giving of instruction No. 8 referred to in the prevailing opinion. After calling the attention *504of the jury to a number of elements proper for their consideration in fixing the amount of damages, the instruction informed the jury that it might consider all expenses incurred by appellee in attempting to effect a cure of said injuries, if any. Appellant objected to this part of the instruction on the ground that there is no evidence in the record from which the jury could have been authorized to find that appellee had expended any amount of money or had incurred any liabilities in an attempt to be cured or healed of his injuries.
As to the question thus presented, I am in full accord with the views expressed in a former opinion in this case. Indianapolis Traction, etc., Co. v. Hensley, 105 N. E. 474. In that opinion, speaking for the court on this subject, Justice Erwin said: “In the trial of the cause, evidence was introduced which established the fact that appellee was treated by a physician for his injuries; had a brace prepared to support his head; had made a trip to Florida; had stopped at hotels; at a farm; had been taken to the country; had been treated by physicians both before and after his return from Florida; is still being treated by a physician; that several doctors had been in consultation, one a nerve specialist. There was evidence as to trouble in nursing and caring for appellee, but no evidence as to the cost or expense incurred for any of the things that was done to cure himself, and as far as the testimony shows he incurred no expense. Appellee alleges in each paragraph of his complaint: ‘That he has spent large sums of money for doctor bills and medical treatment, in an effort to heal himself, and restore himself to health.’ In Chicago, St. L., etc., R. Co. v. Butler, 10 Ind. App. 244-258, 38 N. E. 1, that court held an instruction, similar to this one, erroneous, citing numerous authorities. This court has cited that case with approval in Cleveland, etc., R. Co. v. Case, 174 Ind. 369-377, 91 N. *505E. 238. Appellant contends that, as the instruction contained the words, if any, after stating that the jury should consider among the elements of damages all expenses incurred, etc., the jury were not warranted in considering that evidence if there was none on the subject. In Cleveland, etc., R. Co. v. Case, supra, numerous cases are cited wherein this court held that the instructions should be relevant to the issues and pertinent tq the evidence, and if an instruction is given concerning a fact, or set of facts, to which no evidence has been adduced, it will be reversible error unless it clearly appears that the party affected was not harmed thereby. Hanes v. State, 155 Ind. 112, 57 N. E. 704. In Blough v. Parry, 144 Ind. 463, 40 N. E. 70, 43 N. E. 560, the court used the words, ‘if the jury believe from the evidence,’ etc., and, no evidence being introduced on that subject, this court held the instruction erroneous. In Hays v. Hynds, 28 Ind. 531, this court said: ‘Instructions should be pertinent to the caseJ Juries are apt to assume, and are justified in assuming, that they are applicable, * * * and unless the jury utterly disregard the instructions, it could scarcely fail to mislead.’ In Hill v. Newman, 47 Ind. 187, the court in its instruction used the words, ‘if the jury believe from the evidence.’ This court held the instruction erroneous because it referred to matters outside of the evidence. Instruction No. 8 was erroneous, and w.e cannot say, in view of the amount of damages awarded, that the instruction was harmless.”
The prevailing opinion conceded appellant’s position as to the state of the evidence as shown by the record, and the authorities cited by Erwin, J., in support of the part of his opinion quoted are not referred to or discussed. Under those authorities the giving of the instruction under consideration was reversible error. If these cases cannot be distinguished, it Is the duty of this *506court to follow them if they are sound, or if unsound they should be directly overruled. The prevailing opinion does neither.
Note. — Reported in 115 N. E. 934. Street railroads: (a) liability of, for injuries caused by collision with fire apparatus, 19 L. R. A. (N. S.) 623, L. R. A. 1917 E 415; (b) duty of, in use of streets, 25 Am. St. 481; (c) operation of car in violation of a municipal ordinance as negligence per se, 9 Ann. Cas. 840, Ann. Cas. 1913 E 1100. Evidence, judicial notice as to municipal ordinances, 5 Ann. Cas. 614, Ann. Cas. 1914 C 1232, 16 Cyc 898. Care required of fire apparatus to avoid collision with a street car or other vehicle in the street, Ann. Cas. 1913 E 231. See under (1) 36 Cyc 1513; (15) 36 Cyc 1496; (16) 36 Cyc 1561.