Dissenting Opinion.
Lotz, J.The appellee’s decedent, Harriett E. Yound, was killed by appellant’s train of cars on a highway crossing. There was a trial by. jury and a special verdict returned, upon which the court, after overruling appellant’s motion for judgment and motion for a new trial, rendered judgment for the appellee in the sum of $1,975.00.
*222Only two ‘assignments of error are discussed by appellant: (1) The overruling of its motion for judgment on the verdict, and (2) overruling its motion for a new trial.
It is insisted that there is a fatal variance between the facts found and the averments of the complaint.
There are two acts of negligence charged in the complaint. The first is that the railroad company ran a locomotive westward across the highway, and also carelessly and negligently ran and operated a certain other locomotive and train of cars following close behind, to-wit: within fifty rods of the first, and running the same at a high and dangerous rate of speed, at the rate of sixty miles per hour. The second act of negligence charged is the failure to> give the statutory signals. The last charge, in so far as it is made a basis of recovery, goes out of the case, as the special verdict finds that the signals were given.
The facts, as found by the special verdict, are substantially as follows:
At about one-half mile east of a station called Alida, in Porter county, the appellant’s railroad crosses a highway. The railroad runs nearly due east and west and the highway north and south, and cross each other at about right angles. On the north of the railroad and west of the highway, the view to the west, on the day of the injury, was obstructed by a high hedge fence, a barn and a house, the last of which stood within sixty feet of the railroad track; and by a train of freight cars which stood upon a side track, which side track came within about seventy-five feet of the crossing. Commencing at a ppint on the highway one hundred and sixty feet north of the track, and from thence to the track, the view to the east was unobstructed, and an approaching train could be seen for the distance of one-half a mile. On the 25th day of *223October, 1892, the deceased was traveling on the highway, going south. She was in a top buggy drawn by a single horse. At about 5 o’clock on the afternoon of said day, she approached the crossing. The weather was cloudy and misty, and considerable wind was blowing from the southwest at the time. The top of the buggy was raised, and the side curtains were drawn, to protect her from the rain and wind. ■ When she approached within 160 feet of the track, a locomotive, in charge of defendant’s servants, passed over the crossing, at the rate of about thirty-five miles per hour, running from the east to the west, and immediately after the locomotive had passed over the crossing the deceased proceeded on the highway toward the crossing, in a reasonably careful and cautious manner, and attempted to cross; that while so attempting, and when she was upon the crossing, a second locomotive, drawing a train of cars, running from the east to the west, operated by the defendant’s servants, ran upon and collided with the buggy and so injured Mrs. Yound that she shortly thereafter died as a result of the collision. The train of cars which collided with the decedent was running at about the rate of forty miles per hour, and was about one-half mile behind the locomotive that first passed over the crossing, and reached the crossing not more than one minute after the locomotive had passed. It is also found that the deceased had her faculties of seeing and hearing unimpaired, and that h'ad she looked to the east, at any time after the first locomotive passed, she could have seen the second train approaching. It is found that the second train sounded the whistle when within eighty rods of the crossing, but that on account of the fact that the top and side curtains were up on the buggy, and the direction and force of the wind, and the peculiar condition of the atmosphere, and the *224noise made by tbe first locomotive, she was unable to bear tbe whistle. The locomotive of the second train also whistled, when within about ten rods of the crossing, but it was then too late to avoid the collision; nor did she hear the noise made by the train in time to avoid the collision.
The fifth and sixth findings are as follows:
“The train which collided with the decedent, as: aforesaid, was run so close to the locomotive, at said highway crossing, as to render the sound of the whistle unavailing to one approaching said railroad from the north, at a point where the decedent was at the time, and it was impossible for one approaching said railroad to hear the sound of said whistle on account of the wind, the condition of the atmosphere and the noise made by the said first engine; that said first engine made considerable noise and clatter, in running west, until it reached Alida, which was heard by the decedent on account of the wind, and such noise and clatter overcame and confused the noise of the train, which occasioned the injury. It was unusual to run trains, one so close to the other, and it was highly dangerous to travelers upon said highway, going southward, to so run them. We find that the defendant did not exercise ordinary care in so running said trains, and that the defendant did not exercise that degree of care, for the protection of travelers upon said highway, that a person of ordinary prudence would have exercised under similar conditions and circumstances.
“We find that the defendant was guilty of negligence in running the train of cars that collided with the decedent so close after the locomotive, as aforesaid. We further find that decedent’s death was caused solely by the defendant’s want of ordinary care in running its trains, one so close after the other, *225as aforesaid, and in running them so that the sound of the whistle of said train for the highway crossing could not be heard by one approaching said crossing, from the point the decedent was when the first engine crossed the highway, as aforesaid; that if said locomotive had been the usual and proper distance ahead of said train which collided with decedent, she would have heard the crossing whistle and approach of said latter train, and could and would have avoided the collision.
“6th. We further find that the decedent, at the time, and before said collision, was familiar with said highway crossing and surroundings, and she was familiar with the manner in which trains were usually run on said railroad, and on other railroads; and after said first locomotive had passed over said crossing, she supposed, and believed, and had good reason to suppose and believe, that she could cross said railroad before any other train or locomotive would come from the east.
“We further find that the decedent was deceived, misled and thrown off her guard by said locomotive-engine, running so short a distance ahead of said train, which caused the injury, as aforesaid, and was thereby caused to omit the precautions she would have otherwise taken to ascertain the approach of said latter train, and the noise of the said locomotive-engine, as it proceeded west of the crossing, made it impossible for her to hear the approach of said train which caused the injury, as aforesaid. The railroad, to the west, was obstructed from the view, as aforesaid, and there was a liability of a train coming from the side track west of said crossing, after said first locomotive had passed said crossing, and the decedent’s attention was attracted to the westward, and reason*226able prudence, under the circumstances, required her to keep close lookout to the west to avoid a possible collision with a train that might come from that direction; that she maintained such constant lookout and attempted to cross said railroad without looking to the east. We find that in approaching and attempting, to cross said railroad the decedent exercised ordinary care, and that in so approaching and attempting to cross she exercised that degree of care that a person of ordinary prudence would have exercised under the same circumstances. We find that the decedent was entirely without fault or negligence, in approaching and attempting to cross said railroad, at the time she was-injured.”
Disregarding the evidentiary matters and conclusions found in the verdict, we still have these facts remaining, that the appellant was running a locomotive at the rate of thirty-five miles per hour, and that, following behind the locomotive, the appellant was running a passenger train at the rate of forty miles per hour, the two trains being only one-half a mile apart in distance, and not more than one minute apart as to time.
Do these facts constitute negligence? And is the question of negligence one for-the court or one for the jury?
Negligence is the absence of that degree of care which an ordinarily prudent person would exercise, under given conditions. The law has no fixed rule or standard by which negligence or the absence of negligence can be determined, as applied to- all cases. When the adjudications have evolved a rule-, or the precedents established a standard, that rule or standard may be applied in all similar conditions. And there are- other cases in which negligence or no negligence may be determined, by the applicaton of com*227mon sense and the plainest principles of justice. But there are many cases which do not fall within any of these rules. The question of negligence then becomes one for the jury. Louisville, etc., R. R. Co. v. Berry, 9 Ind. App. 63.
The rights of a railroad company at a highway crossing are superior to those of the traveler on the highway. Its trains have precedence over the traveler. But the company owes a duty to the traveler. It is required to give warning signals of the approach of its trains, and to run the train in such a manner that the warning signals will not be unavailing to the traveler. It is also required to operate its trains in such a manner as not to mislead the traveler or lull him into a sense of security, when danger actually exists. If it violates these duties, it is guilty of negligence. If, under the facts found, only one inference can be drawn, then the question of negligence or no negligence is one for the court, but if two inferences can be drawn by a reasonable person, one of negligence and one of no negligence, then it is a question for the jury. I am of the opinion that the question of whether the appellant exercised due care, in the operation of its trains, on this occasion, is one for the jury, and that the negligence charged in the complaint is found in the verdict.
The appellant also insists that the findings show that the decedent contributed to her injury.
A traveler upon a highway must approach a railroad crossing, under the apprehension that it is a. place of danger; and, ordinarily, he is required to stop and look and listen for approaching trains; but this is not an inflexible rule. There may be circumstances, which will excuse the traveler from using these precautions. If one train has passed, and the traveler: has no reason to apprehend that another will fol*228low closely behind it, he may be excused from exercising that high degree of care that the law usually enjoins upon him. The question of whether or not the decedent exercised that degree of care that a person of ordinary prudence would have exercised, under the facts and circumstances found, was also one for the jury. In determining this question, the jury had the right to take into consideration the condition of the atmosphere; the direction and force of the wind; the noise and confusion made by the first engine; the obstructions to the view on the west of the highway; the freight train standing upon the side track; the fact that the decedent’s attention was diverted so that she failed to look to the east; and the fact that she was misled, or caused to believe that another train was not then approaching, because one had just passed.
This case cannot be distinguished, in principle, from that of Grand Rapids, etc., R. R. Co. v. Cox, 8 Ind. App. 29, on this point. If that case was correctly decided, then this judgment should be affirmed. If it was not correctly decided, then it should be overruled.
In that case the traveler upon the highway, about 9 o’clock at night, drove toward the crossing, riding in a buggy with the top down. Knowing that a train was about due, he listened and heard it, checked his horse to a slow walk, and when he was one hundred feet from the crossing the train passed. His horse then started up in a trot. The traveler drove on without looking further until his horse’s feet were almost on the track, and his body perhaps ten feet from it, when he saw another train, apparently within about fifty or sixty feet, coming at the rate of fifteen or twenty miles per hour. Believing this to be his only chance of escape, he struck his horse with the lines and was caught by the train as he crossed the track. By looking, he could have seen the approaching train *229when he was thirty-five feet away. This he could have done in an instant of time. A glance would have advised him of his danger. This he could have done several times before he reached the danger point. Had he done so, he could have avoided the collision. But he did not do so, and this court held that it could not rule that he was guilty of contributory negligence per se, but that it was a question for the jury. When it is considered that the traveler in that case, as well as in this, had the opportunity to see the approaching train, in time to avoid it before the danger point was reached, there is no difference in principle. In fact, there are elements in this case that tended to excuse the traveler from looking, that did not exist in that. Here the noise and clatter of the departing train, the condition of the atmosphere, the direction and force of the wind, the hedge upon the west side of the road, and the freight train upon the side track, — are so many additional facts proper to be considered by the jury in determining whether or not the traveler was guilty of contributory negligence. The freight train upon the' side track was of itself a constant menace of danger, from the time she came in sight of the crossing. The decedent, no doubt, as the jury found, was laboring under the apprehension that she was in danger from the freight train. It was liable to cross the highway from the west, and the deceased’s attention was diverted from the danger to the east. In this respect, this case is a much stronger one to be left to the jury than the Cox case, supra. That two or more reasonable inferences can be drawn from the evidence, is-demonstrated from the fact that a jury of twelve men, and the learned judge who presided at the trial, were of the opinion that the deceased did not contribute to her death.
The appellant also insists that it was not respon*230sible for the conditions of the weather and atmosphere, and the direction and force of the wind; that these conditions only enjoined a higher degree of care .upon the decedent, and that she contributed to her death by having the top of the buggy up and the side curtains drawn, these being conditions of her own creation, and which obstructed her sight and hearing. .The decedent had the right to protect herself from the inclemency of the weather, by the top and side curtains. The fact that she did so only goes to the quantum of care which she was bound to exercise under all the other circumstances. The court cannot say, as a matter of law, that she thereby contributed to her death. This was also a question for the jury, and, in determining it, the jury might take into consideration the fact that her attention was diverted to the dangers which she apprehended from the west, and to the fact that she was induced to believe that no train was approaching from the east
I am of the opinion that there was no error in overruling the motion for judgment on the verdict.
Under the assignment of error, predicated upon overruling the motion for a new trial, the appellant in-. sists that there was no evidence whatever to support some of the facts found by the verdict
No witness testified to the usual or customary manner of operating trains upon a railroad, nor as to the difference in distance and time which should be observed between trains to prevent collisions. The appellant asserts that neither the court nor the jury has any right to assume a fact in the absence of any evidence.
There are many facts which a court or jury, in trying a case, may assume and find without evidence. A person acting in a judicial capacity must not only exercise his own logical faculties, in construing and ap*231plying evidence, but must draw upon his own sources of knowledge for such information as is common to all intelligent persons of the same community. Reason and evidence are the co-ordinate factors which go to make up proof. Juries, like courts, may exercise judicial knowledge, and judicial knowledge extends to such matters of every-day knowledge of which there is no possibility of dispute. Evidence is not required to establish that which is so notorious to persons of ordinary intelligence, that it either admits of no doubt, or could, at the moment, be established by a profusion of evidence. Wharton Ev., sections 329, 330; Greenleaf Ev. 11; Taylor Ev., section 4, note 2; Brown v. Piper, 91 U. S. 37.
Courts and juries may also take judicial knowledge of the custom and manner of operating railroads. Downey v. Hendrie, 8 Am. and Eng. R. R. Cas. 386; Slater v. Jewett, 5 Am. and Eng. R. R. Cas. 515.
The appellant also insists that there was no evidence whatever as to the condition of mind of the decedent, at and immediately preceding the injury, and that the jury had no right to conclude that her attention was diverted, and that she was misled.
The instincts of self-preservation frequently stand in the place of evidence. It is not. to be assumed, in the absence of evidence, that the deceased rushed heedlessly and recklessly to her own destruction.
“The love of life and the instincts of preservation are the highest motives for care in any reasoning being; they will stand for the proof of care until the contrary appears.” Cleveland, etc., R. R. Co. v. Rowan, 66 Pa. St. 393; Allen v. Willard, 57 Pa. St. 374; Gay v. Winter, 34 Cal. 153.
The jury had the right to conclude that the deceased did those things, and was in the same mental *232condition that a reasonable being would naturally be in, growing out of the surroundings.
Filed May 6, 1896.It is lastly insisted that the undisputed evidence shows that the decedent was guilty of contributory negligence in attempting to drive across the track after she saw the approaching train. The evidence shows that she was very close to the track when she discovered the approaching train; that she seemed to become excited and confused, and then made the attempt to cross. That she was not guilty of contributory negligence, under such circumstances, was expressly so held in Grand Rapids, etc., R. R. Co. v. Cox, supra. The authorities abundantly establish the proposition that when a person is suddenly confronted with an unexpected danger, not of his own making, he is not expected or required to act with that degree of circumspection and caution of a person in a calm condition of mind. The law makes due allowance for the infirmities of humanity.
I am of the opinion that the judgment should be in all things affirmed.