On Petition eor a Rehearing.
Lotz, J.The appellant has presented a petition for a rehearing, in which the former decision of this court is assailed with great vigor.
There are some acts charged in the complaint, which do not, in our judgment, constitute negligence, and there are some facts found by the special verdict that are not alleged in the complaint, and which do not constitute negligence. Eliminating from the special verdict all such facts and all conclusions of both law and fact, as we may do (Pittsburgh, etc., R. W. Co. v. Adams, 105 Ind. 151), the question arises whether or not there are facts alleged and found remaining sufficient to support the judgment rendered by the lower court.
In their brief, appellant’s counsel admit that there are two acts of alleged negligence which are averred in the 'complaint and found by the jury:
“1st. That appellant, knowing that appellee’s team *192ivas running away, and that appellee was in a place of danger, blew the engine whistle three times; and
"2d. Made no effort to stop or check the speed of said train, but willfully and carelessly increased the speed thereof.”
It is earnestly insisted that the evidence does not sustain either of these findings. We have examined the evidence, and find it conflicting on both of these points.
It is the settled rule that this court will not disturb the judgment under such circumstances.
It is further contended that as the law made it the duty of the engineer to give the signal by sounding the whistle for the highway crossing, negligence can not be predicated upon an act which the law requires to be done. The former opinion of this court is severely criticised.
Counsel for appellant, with remarkable force and clearness, say: "Can it be said to be the law that when an engineer sounds the whistle of his engine in strict obedience to the statute, he may be guilty of negligence? Must he, while holding in his hands the lives and property entrusted to his care, dashing along at the rate of fifty or sixty miles an hour, with all his cares, in the twinkling of an eye transform himself into a witness, jury, and court, survey the surroundings and determine with absolute accuracy, above the possibilities of criticisms, whether he shall obey the law, and be guilty of gross negligence thereby, or disobey the law and see before him a threatened fine for himself and damage suit for his company, and maybe death to his passengers?
‘ ‘The statute requires that the whistle shall be sounded not more than one hundred nor less than eighty rods from the road crossing. The signal must be given within this space. This distance of twenty rods is often traveled in four seconds of time, and yet the engineer must look at the team, determine how fast it is running, how *193badly scared it is, how strong and capable the driver, what probable effect the sounding of the whistle will have on the scared team, and determine with accuracy whether the "exception applies,” and he is justified in running on quietly and probably creeping upon some driver about to cross, and who has, with all due diligence, listened for the warning guaranteed to him by law for his protection, and dash him and his carriage load of passengers into eternity.
"Would any jury and court, with days of deliberation and the facts laid before them by witnesses from every standpoint of observation, be able to determine just how fast the team may be running, just what conditions must exist to justify the engineer in disobeying the statute?
"In this case the horses were almost under control, the speed checked, and if it had not been for this crossing whistle, they would not have become unmanageable. This was a much traveled road, and can it even now be said that the sounding of the whistle on this very occasion did not give the required warning and save the lives of a dozen people who otherwise would have come upon the track at the crossing, with no knowledge of the approach of this irregular train.
"In the opinion it is laid down as the law that ‘upon many occasions an engineer may sound the whistle lawfully. When approaching a public highway crossing, he is by law in this State required so to do. Circumstances may exist, however, that would render such an act the grossest negligence. If the engineer sounds the whistle upon a proper occasion, and in so doing he frightens a team of horses so that they become unmanageable and do injury, negligence will not be imputed to him by reason of the act, unless there are circumstances within his knowledge admonishing him that injury will probably *194result if the act was done. The mere sounding of the whistle can not be deemed negligence, although blown in close proximity to a highway, and even though there are horses in the immediate vicinity.’
. “The finding in this case is that ‘said horses took fright and started in a trot along said highway, whereupon the appellee, holding the reins in his left hand, set the brakes on the wagon with his. right and thus checked said team,’ when the engineer sounded the whistle.
“Can it be said as a proposition of law that an engineer is excused from sounding the warning whistle for a crossing, when he sees a team scared and then checked up? Would he even be justified in neglecting to give the statutory signals under such circumstances? Surely the danger would havq to be a great deal more apparent to make it negligence to sound the whistle in obedience to the statute.”
After considering the cogent reasoning of counsel we have reached the conclusion that there may be expressions in the former opinion that do not accurately state the law as applied to the facts of this case.
A moving train of cars is always attended with danger to those who may be on board and to those who may be near a highway crossing. The danger As enhanced in the ratio of the increased speed of the train.
The law imposes upon a railway engineer the positive duty of giving the statutory signals in approaching a highway crossing, and inflicts a penalty for the violation of this duty. If, in approaching the crossing, he should see and know that a traveler upon the highway is in imminent peril on account of the approaching train, it is his duty to refrain from giving the statutory signals, and slacken the speed of the train and come to a stop if possible before reaching the crossing. If, however, the train has reached the point where the law requires the *195signal to be given, and it is uncertain whether or not the train can be stopped before reaching the crossing, he must give the signals, and negligence can not be imputed to such acts.
We think there are at least two acts of negligence, the failure to check the speed and increasing the speed of the train, that were.both alleged and found by the jury sufficient to support-the judgment.
Petition overruled.
Gavin, 0. J., concurs in the result.
Ross, J. — I think the petition should be granted.
Riled June 24, 1893.
Separate Opinion.
Reinhard, J.I agree with the conclusion reached in the original opinion. Whether I could endorse all the reasoning of fihe learned judge who rendered it, it will not now be necessary to decide.
Filed June 24, 1893.
Separate Opinion.
Davis, J.I concur in the conclusion reached in overruling the petition for rehearing. On the facts as found in this case, I am not prepared to say that the sounding of the whistle on this occasion constitutes negligence; but, in my opinion, there may be circumstances under which it would be negligence to sound the whistle at a point enjoined by the statute.
Riled June 24, 1893.