— This was an action comtaienced in the Allen Circuit Court April 30, 1898, by appellee against appellant, to recover damages for injuries to his person, wagon, and contents, and horses, received the day previous in a collision with one of appellant’s passenger trains at a highway crossing in the country a few miles west of Et. Wayne. Upon change of venue, it was tried in the Adams Circuit Court, and judgment was rendered in favor of the appellee upon the verdict of the jury for $1,250.
The highway where the accident occurred runs north and south. The railroad at the point where it crosses the highway runs north of east. At about I o’clock a. m. on April 29, 1898, as the appellee, a man of sixty years of age, was traveling on the highway to the north in a closely covered wagon drawn by two horses and loaded with chickens, butter, eggs, and rags, and just before the hind wheels of his vehicle had cleared the north rail of the track, they were struck by a passenger train coming from the west and running at the speed, as the jury finds, of forty or fifty miles an hour. The wagon and its contents were demolished, the horses slightly injured and the appellee, though receiving no broken or fractured bones or serious flesh wounds, incurred, as was found by the jury, permanent injuries.
No question is made as to the sufficiency of the complaint. It avers that appellant was negligent in failing to give the statutory signals, alleges facts for the purpose of showing the difficulty of seeing or hearing the train, and avers want of contributory negligence upon the part of the appellee. *163With their general verdict, the jury also, in answer to interrogatories submitted by request of the appellant, found specially upon the facts in the case. Before the discharge of the jury, appellant moved the court, in writing, to require the jury to make more specific their answer to each of certain interrogatories. This motion was overruled as a whole, and as to each interrogatory, to each of which rulings appellant excepted. Appellant’s motions for judgment on the special findings of the jury, notwithstanding the general verdict, and for a new trial were overruled. Appellant relies for a reversal on the fourth, fifth, and sixth specifications of errors relating to overruling appellant’s motion for judgment on the special findings, overruling its motion for a neiw trial, and sustaining appellee’s motion for judgment.
Did the court err in overruling appellant’s motion for judgment on the special findings of the jury ? One hundred and twenty-eight interrogatories were submitted. These findings show that appellee was riding in a wagon closely covered over the top and at the sides, the covering extending so far to the front of the wagon that he could not see in the direction of the coming train, except by partially rising to his feet, leaning forward and extending his head to the front of the cover. The highway by which appellee approached the railroad crossing was in a cut; on the west side thereof, the side from which the train approached, there was an embankment higher than the highway; on the top of the embankment there was a five-board fence, the boards five inches in width and five inches apart. In passing through this cut, as one nears the crossing, the view toward the railroad was at some points unobstructed, partially at some, and at others wholly obstructed. The railroad consisted of a single track; he was driving gentle horses, and was familiar with the crossing. He stopped his horses when they were within sixty or seventy-five feet of the track. He checked them when they were twenty-five feet from the track; each time he rose to his feet, protruded his head to *164the front of the cover of his wagon and carefully looked in the direction from which the train came. At these times he carefully listened for the approaching train, but he did not see nor hear it. His eyesight and hearing were ordinarily good. Appellant’s train was being run at the rate of forty or fifty miles an hour; no signals of its approach were given.
Appellant’s negligence clearly caused appellee’s injury. He was looking and listening for the danger of which the statutory signals,- had they been given, would have warned him. While the failure of appellant to give notice of its approaching train could not relieve appellee from exercising care to avoid injury, yet the absence of such warning is a circumstance in determining whether he did exercise the proper degree of care. Pennsylvania, R. Co. v. Ogier, 35 Pa. St. 60, 71; Cleveland, etc., R. Co. v. Harrington, 131 Ind. 426.
It has been held by our Supreme Court that where there is evidence tending to show that a party injured at a railroad crossing is thrown off his guard by such means as might have such an effect upon an ordinarily prudent person, it is proper to submit -the question of contributory negligence to the jury.
Appellee was driving at the rate of three miles an hour. He made two attempts to see and hear the approaching -train at the distances from the track heretofore stated. From the point twenty-five feet from, until he reached the track, the findings do not show that he put himself in a position where he could see the train. This time, at the longest, because of the high rate of speed of the train, was but a few seconds. We do not feel warranted in saying as a matter of law that he was guilty of contributory negligence. We have not deemed it necessary to give in this connection a summary of all the findings. They are not all consistent; but when they are in conflict they nullify one another and do not overthrow the general verdict. The negligence of appellant might have had the effect of throwing an ordinarily prudent *165person off his guard, in which case it was the province of the jury, under proper instructions of the court, to pass upon his contributory negligence. Chicago, etc., R. Co. v. Hedges, 105 Ind. 398. When the facts present such a situation that more than one inference may be drawn by men of equal intelligence and prudence, the question of due care is one of fact for the jury and not of law for the court. Baltimore, etc., R. Co. v. Walborn, 127 Ind. 142, and cases cited; Cleveland, etc., R. Co. v. Harrington, 131 Ind. 426; Cincinnati, etc., R. Co. v. Grames, 136 Ind. 39; Cleveland, etc., R. Co. v. Moneyhun, 146 Ind. 147, 34 L. R. A. 141; Grand Rapids, etc., R. Co. v. Cox, 8 Ind. App. 29; Pittsburgh, etc., R. Co. v. Burton, 139 Ind. 357; French v. Taunton Railroad, 116 Mass. 537; Missouri, etc., R. Co. v. Lee, 70 Tex. 496, 7 S. W. 857; Huckshold v. St. Louis, etc., R. Co., 90 Mo. 548, 2 S. W. 794; Teipel v. Hilsendegen, 44 Mich. 461, 7 N. W. 82. In the case last cited, Judge Cooley, speaking for the court, says: “If the circumstances are such that reasonable minds might draw different conclusions respecting the plaintiff’s fault, he is entitled to go to the jury upon the facts.”
In Cleveland, etc., R. Co. v. Harrington, supra, the plaintiff was well acquainted with the crossing, of good sight and hearing. There were four tracks at the crossing, over one of which, as she approached on foot, a freight train Avas passing north. When at a distance of thirty-seven feet from the track she could see north up the track upon which she was injured 400 feet. At this point she looked, and, seeing no train, continued her course over the track looking in a southAvest direction, and was struck and injured by a train from the north. The train Avas running at a greater rate of speed than was allowed by city ordinance and no bell was being rung. With respect to these facts the court says: “In our opinion the decided Aveight of authority is that under the facts and circumstances in this case the question of contributory negligence Avas a question for the jury under proper instructions from the court.”
*166Appellant at the proper time excepted to the third instruction given by the court of its own motion. It is lengthy, and we do not deem it necessary to set out more than the portions objected to. Such parts are as follows: “You are not bound to believe what, a witness has said merely because he has sworn to it.” Also: “In determining the credibility of a witness you should consider * * * his interest, if any, in the event of the suit; * * * the relation any witness may sustain to the transaction about which he has testified; * * * also, that the greater number of witnesses testifying to the same effect upon any controverted question does not necessarily create a preponderance of evidence.” It is insisted by counsel for appellant that the court invaded the province of the jury in informing them as a matter of law that they were not bound to believe what a witness has said merely because he has sworn to it. It is urged too that it was error to tell the jury that in determining the credibility of a witness they should consider his interest, if any, in the event of the suit; the relation he may sustain to the transaction about which he testified; and that the greater number of witnesses testifying to the same effect upon any controverted question does not create a preponderance of the evidence. It is argued that thus to instruct as to the number of witnesses was especially harmful to appellant, because the number of appellant’s witnesses upon tho controverted questions exceeded that of the appellee. It is further urged that to instruct the jury to consider the relation of a witness to the transaction in determining his credibility tended to discredit the testimony of several of the employes of appellant who gave important evidence in its favor. In these several objections there is much force; but it is unnecessary to pass upon them becaxise appellant’s counsel point out a defect on account of which the instruction must, under numerous decisions of our court, be held to bo bad viz.: In directing the jury as to the manner of determining the credibility of the witnesses they were told that they "should" instead of might, consider certains facts *167as shown in the parts of instructions- set out. The following-cases are cited: Fulwider v. Ingels, 87 Ind. 414; Woollen v. Whitacre, 91 Ind. 502; Shorb v. Kinzie, 100 Ind. 429; Oline v. Lindsey, 110 Ind. 337; Jones v. Casler, 139 Ind. 382, 47 Am. St. 274; Durham v. Smith, 120 Ind. 463; Dodd v. Moore, 91 Ind. 522; Duvall v. Kenton, 127 Ind. 178; Newman v. Hazelrigg, 96 Ind. 73 ; Hartford v. State, 96 Ind. 461, 49 Am. Rep. 185; Finch v. Bergins, 89 Ind. 360; Bird v. State, 107 Ind. 154; Pennsylvania Co. v. Hunsley, 23 Ind. App. 37, and authorities there cited.
We are not prepared to say from the record that the verdict was right. The instruction is, therefore, presumed to have been harmful, and for this reason the judgment must be reversed. Other questions discussed by appellant’s counsel may not arise again and we do not consider them.
Judgment reversed, with instructions to sustain appellant’s motion for a new trial.