On Petition for Rehearing
Achor, C. J.Appellee by petition for rehearing asserts that the opinion as written failed to consider the fact that “Not one of the seven interrogatories tendered in this case could have had ‘. . . a decisive or controlling effect regarding one or more of the issues raised by the pleadings and supported by the evidence.’ ” Appellee asserts that for this reason the trial court’s refusal to submit these interrogatories to the jury was not an abuse of discretion, and therefor that under the test stated in the opinion the judgment should have been sustained.
The original opinion decided the issue now asserted but without supporting discussion. We therefore give consideration to this issue as it is presented by interrogatory No. 1, since, under the opinion as written, it is decisive of the appeal. The interrogatory is related to the issue as to whether the appellee had a flagman at the crossing at Eastern Avenue to warn travelers of the approach of trains. This issue was raised by the following pleadings.
The third paragraph of the amended complaint alleged that the train was backed “without having any flagman on Eastern Avenue to warn automobile traffic of approaching trains ... or of giving any signal of any kind whatever.” The fifth paragraph of the amended complaint alleged that,
*636“At the time of said collision there was in full force and effect in the City of Connersville, Indiana the following City Ordinance, to-wit:
“Section 1. ‘That it shall be unlawful for any railroad company to run any locomotive, or car, across Mill Street, at the South end of Central Avenue and Fifth Street in said city at the Points where the tracks of the Cleveland, Cincinnati, Chicago & St. Louis railway crosses said streets; or Eastern Avenue in said city where the tracks of the Lake Erie & Western railroad crosses said avenue, without a flagman stationed and maintained at crossings to warn travelers on said streets of the approach of locomotives and cars.
“ ‘Any railroad company violating any part of section 1 of this ordinance shall, on conviction thereof forfeit and pay to the City of Connersville any sum not exceeding five dollars for each offence.’
“The Lake Erie & Western railroad mentioned in said ordinance is now owned and operated by the defendant.”
The evidence regarding this issue is in marked conflict. Appellant’s witnesses testified that a flagman “walked out to the middle of the street to flag Eastern Avenue” and while he “was flagging the crossing . . . in the center of the street,” he also signaled for the train “to proceed on south . . . across Eastern Avenue.” On the other hand appellee’s testimony is that he “did not see any flagman with a lantern or without any lantern . . . signaling the traffic.” The interrogatory was as follows:
“As the train backed into Eastern Avenue, was there an employee of said defendant, the New York, Chicago, & St. Louis Railroad Company, in view waving a lantern?”
Appellee asserts that the interrogatory is ambiguous and that because of this ambiguity it cannot be said *637that the interrogatory was controlling of any issue and therefore that it was properly rejected within the rule announced in the original opinion.
However, when the interrogatory is considered in conjunction with the pleadings as above set out and the evidence to which it is related we believe there would be no misunderstanding regarding the import of the question of fact propounded.
Given a reasonable construction, an answer to the interrogatory would have been controlling of the issue as presented by the pleadings above quoted. It was within the scope of the evidence and therefore it was error for the court to refuse it.
The petition for rehearing is denied, and judgment is reversed with instructions to sustain appellant’s motion for new trial.
Arterburn, Jackson, Bobbitt and Landis, JJ., concur.Noth.—Reported in 158 N. E. 2d 157.
Rehearing denied in 159 N. E. 2d 574.