Dissenting Opinion;
Ewbank, C. J.The appellee recovered a judgment for damages for personal injuries sustained when one of appellant’s interurban cars collided with an automobile in which she was riding. The collision occurred after dark on the evening of November 25, 1917, at a highway crossing in the country, about a mile and a half west of Morristown, in Shelby county, Indiana.
The complaint alleged that appellant was operating an interurban railroad and the car in question; that the interurban track ran in a westerly direction, and intersected the highway nearly at right angles; that east of the highway the track ran through a cut, and that south of the track on that side the surface of the ground was from three to fourteen feet higher than the highway, and covered with buildings and trees, and that this condition extended south from a point within fifteen or twenty feet of the track, and eastward many hundred feet; that said condition obstructed the view from the highway south of the track of cars approaching on the interurban railroad from the east, and interfered with hearing their approach; that appellee knew nothing about the highway or the country about there, or of the location of appellant’s track; that she was riding *403as a guest of the driver of the automobile and had no control over it; that the driver came up from the south and stopped near the track, and he and appellee looked and listened for cars, but could neither see nor hear any; that appellant by its servants ran its car west upon and over the crossing at the rate of fifty miles an hour with knowledge of the “condition of said public crossing,” and negligently failed to sound the whistle or ring the bell at the statutory distance, or to give any warning of its approach, and negligently ran the car against the automobile in which appellee was riding, as it was started up and driven upon the crossing after being so stopped, and thereby inflicted the injuries complained of. After a general verdict in favor of the appellee had been returned and judgment thereon had been rendered, appellant duly filed its motion for a new trial, reserved an exception to the order overruling it, and perfected an appeal. Overruling said motion is the only error assigned that is not waived.
There was evidence tending to prove the facts alleged in the complaint, together with, evidence designed to repel any inference of contributory negligence on the part of the appellee. A number of witnesses testified that the statutory signals for the crossing were not given. But there was also much evidence tending to prove that they were given, and that the appellee was guilty of contributory negligence in failing to see and hear the approaching car, if the automobile was stopped, and other evidence tending to show that, so far from being stopped to look and listen, the automobile was driven over a little hill and past the buildings and orchard, at high speed, upon the crossing, directly in front of the interurban car when it was running so fast that it could not be stopped until after the collision. There was also much evidence tending to impeach the appellee,, who was her own sole witness as to what she and *404the driver did at the time and just before driving upon the track
The court gave a series of instructions, to each of which the appellant reserved an exception, and specifications in the motion for a new trial presented for review those hereinafter set out.
Instruction No. 4, correctly told the jury that the fact that two persons were killed and appellee was injured when crossing appellant’s track did not establish appellant’s negligence nor entitle appellee to recover, and then added: “To enable her to recover it must be shown by a preponderance of the evidence that the defendant was guilty of the alleged negligence described in the complaint.” This instruction did not refer to the effect of contributory negligence as a defense to the action if shown by the evidence. Neither did the instruction next before it, nor either of the next two which followed. And while it did not specifically direct a verdict in favor of the appellee if any negligence of the appellant had been proved, it carried a clear implication that she might recover upon mere proof that appellant was guilty of the negligence charged. Standing alone it was clearly erroneous. But by instruction No. 2, which preceded the one under consideration, and Nos. 7, 8 and 10, which followed' it, the court expressly charged the jury that if appellee was guilty of negligence proximately contributing to her injury she would-not be entitled, to recover and the verdict should be for the appellant. These instructions so far supplemented the one from which the above quotation was made that I should not feel justified in reversing the judgment if this were the only error committed.
A number of witnesses testified positively that the whistle on the interurban car was sounded at the statutory distance from the crossing, and was also sounded 'half a mile farther back, and that it could be and was *405heard by persons who were south of the crossing (appellee was approaching from the south), and was again sounded a short distance east of the crossing, while appellee offered evidence to the effect that no signal was given within a mile of the crossing until just at the instant when the car struck the automobile. The court gave an instruction (No. 16) that when approaching the crossing on the highway appellee had the right to assume that appellant would perform its statutory duty as to whistling, “yet failure to give such warning did not relieve the plaintiff from exercising ordinary care in approaching such track at the crossing and entering upon it.” The language quoted seems to assume that the failure to whistle had been established, and the instruction ought to contain the qualification that it applied only in case appellant’s failure to give the statutory warning had been proved. But the jury had been repeatedly told by instructions which preceded this one that appellee could not recover unless he had shown by a preponderance of the evidence that appellant was guilty of the negligence alleged, and two instructions which followed the one complained of. expressly submitted to the jury the question whether or not the whistle was blown at the statutory distance from the crossing, and instructed them that unless it had been shown by a preponderance of the evidence that it was not so blown the jury must find for the defendant as to that charge of negligence. I do not think that the jury, after hearing all of the instructions, could be so far misled by this one as to require a reversal of the judgment for that cause alone.
There was evidence tending to prove that appellee was blameless; but there was also evidence tending to prove that appellee and her sister’s husband, with his brother and ¿ married woman whose husband was not along, left Indianapolis between eleven and twelve o’clock on • *406Sunday, November 25, 1917, in the brother-in-law’s automobile, and drove to Shelbyville, which is southeast of Indianapolis, and is shown by the evidence to be distant twenty-eight miles from that city; that they were only out for a pleasure ride; that they reached Shelby-ville about four o’clock, and ate' supper there, and at half past four o’clock began to “drive around a little;” that they crossed four or five railroads, and were on their way home when the accident happened; that they were fourteen miles northeast of Shelbyville, and driving directly north when the car struck them; that immediately after the accident appellee said to a woman who came to assist her, “Don’t ever do what I have done today,” and the next day said that the party drank beer at Shelbyville, and after she left the hospital said that the party were drinking before they left Indianapolis and were about “half shot” when they started from there; that the crossing where the accident occurred was a highway crossing in the country; that at eight o’clock in the evening, after it was dark, the automobile, driven by her sister’s husband, with appellee sitting in the front seat beside him, and his brother and the other woman in the rear seat, was driven from the south along the north and south highway toward and upon the crossing; that the highway crossed the track of a steam railroad about 100 feet south of appellant’s track,' and then ran over a hill several feet high and down to the crossing where the collision occurred; that the interurban track was straight for half a mile east of the crossing, and a brilliant light from the car was thrown ahead of it by an electric headlight located twelve feet above the track, which could be and was seen a mile away by witnesses south of the track; that from a point fourteen feet south of the track a car approaching from the east could be plainly seen down through the cut when 1,000 feet away; that the bank *407of the cut in which the track is laid begins fifteen feet south of the track and slopes back about twenty-five or thirty feet to the height of ten feet; that appellee and the driver saw the interurban railroad track and knew they were approaching it after crossing the steam railroad, and he spoke to her about it, but that as they came near it they said nothing to each other; and that the automobile in which appellee was riding was driven up over the hill between the two railroads when the interurban car was only 125 feet away, running fifty miles an hour, and was run from there to and upon the track fast enough to reach the crossing ahead of the car.
The court gave an instruction (No. 18) which stated that if the driver was negligent that fact- would not make the appellee chargeable with negligence, but that it was her duty to use care to learn of danger, and if she discovered the approaching car to warn the driver as soon as she saw it. Neither this instruction nor any other that was given intimated that the appellee might be chargeable with the consequences of the driver’s negligence if she had gone with him for a pleasure ride, knowing that he had been drinking until he was “half shot” before they started for the ride, and if she knew1 that he drank some beer after they had driven four or five hours, and if he had driven her across four or five railroads and was driving toward the interurban crossing at a speed half as fast as fifty miles an hour, with knowledge that the crossing was there, and yet she did not leave the automobile and refuse to ride further with him, nor say anything to him about the manner in which he was running it. In effect this instruction took from the jury whatever defense, if any, the defendant might have been able to make on the ground that the appellee had voluntarily committed herself to the care of a driver that she knew would not exercise care, and was injured *408by his negligence in driving at high speed over a hill and upon the track directly in front of a fast-moving car that could have been seen and avoided if he had drunk less and driven with more ' care. This was error. Kirmse v. Chicago, etc., R. Co., 73 Ind. App. 537, 127 N. E. 837.
Appellee denied that the driver had been drinking, or that they were out for a pleasure ride, or that the automobile was driven over the hill and on the track at high speed and without stopping. But appellant was entitled to go to the jury upon.all the questions as to which the evidence was conflicting
The court gave an instruction (No.. 14) that the complaint charged appellant with running its car at “an unlawful rate of speed,” and that, while no statute limits the speed at which an interurban car may run, yet if appellee was free from contributory negligence and the “rate of speed was the proximate cause of the injuries” to appellee, then, “if you should find that the car was running at a rate of speed which was dangerous to persons using this highway crossing, * * * you will ■find for the plaintiff. * * * In other words, the rate of speed of an interurban car must be regulated at a crossing by the conditions surrounding that crossing at the time.”
This was error. The appellant company could only be charged with negligence because of the high rate of speed at which it ran its car along its private right of way and across a highway in the country by reason of conditions surrounding the crossing in case those conditions were known to it or its servants engaged in running the car, or would have been known to it or them if due care to learn of the surrounding conditions had been exercised. No rate of speed could be an “unlawful rate” in and of itself, and the mere speed at which the car was run over such a crossing could not constitute *409actionable negligence in itself, as affecting a traveler .on the highway. Terre Haute and Indianapolis R. Co. v. Clark, Admr. (1880), 73 Ind. 168; Brooks v. Muncie, etc., Traction Co. (1911), 176 Ind. 298, 306, 95 N. E. 1006; Indiana Union Traction Co. v. Love (1912), 180 Ind. 442, 449, 99 N. E. 1005; Terre Haute, etc., Traction Co. v. Phillips, 191 Ind. 374, 132 N. E. 740. And if credit were given to the evidence relied on by the appellant, instead of that introduced on behalf of the appellee, the. “conditions surrounding that crossing at the time” which made the speed of the car “dangerous to persons (then) using this highway crossing” must be deemed to have been conditions created by the way in which and the speed at which the automobile was run to and upon the crossing. Appellee insists that the language quoted had reference to the depth of the cut in which appellant’s tracks was laid, how near the track was to the south bank of the cut, the location of buildings and trees immediately south of the cut, and the facts testified by appellee as to her inability to see down the track toward the approaching car, or to hear it coming when only fifteen feet from the track, where she said the automobile was stopped. But a number of these matters were only testified by the appellee, and all of them were denied by a number of witnesses; while the fact that the interurban car and the automobile approached the crossing at the same time, and that both reached it at the same instant, were facts as to which all the witnesses were agreed. But if the crossing was so constructed and the surroundings which were known to the motorman and to appellant were such that a traveler who used ordinary care to look and listen for approaching cars could learn whether one was coming in time to avoid being struck by it, as appellant’s evidence tended to show, the rate of speed at which the car was operated could not constitute negligence because of facts exist*410ing “at the time” which the motorman and the appellant could not and did not know. An instruction should be correct as applied to the evidence relied on by each party, and not merely as applied to the evidence favorable to the one who recovered in the trial court. As applied to the evidence introduced and relied on by appellant this one was erroneous.
In my opinion the errors in giving the instructions numbered 13 and 14 were not cured by the other instructions given, and in view of the evidence above recited they were prejudicial, and the judgment ought to be reversed. Therefore I respectfully dissent from the prevailing opinion.