On Petition.for Rehearing.
Comstock, P. J.The rule is universal, in cases in which the injured party seeks to recover damages for personal injuries occasioned by the negligence of another, that the complaining party can not recover if it affirmatively appears that he was guilty of contributory negligence. He must show some care to avoid the injury. He must, at least, use his nautral senses. The traveler must not only do all that an ordinarily prudent man would do under like circumstances, but all that the law declares that an ordinarily prudent person should do. The law measures the duty. A prudent man may do what the law forbids, or he *302may omit to do that which the law enjoins, nevertheless the doing of the one and the' omission of the other is negligence. The most prudent men are not always exempt from carelessness, and when actually negligent, the law attaches the same consequences to their conduct as to similar conduct in others. Cincinnati, etc., R. Co. v. Grames, 8 Ind. App. 112.
In numerous cases it has been held that the plaintiff’s conduct is not contributory negligence, if, notwithstanding his negligence, the injury could have been avoided by the use of ordinary care by the defendant. That rule prevails when the plaintiff is in a position of threatened contact with some agency under the. control of the defendant, when the plaintiff can not, and the defendant can, prevent the injury. It does not apply where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them. Everett v. Los Angeles, etc., R. Co., 115 Cal. 105, 115, 16 Pac. 889, 34 L. R. A. 350. The rule does not apply, where, as in the case before us, the negligence of the party injured continues up to the moment of the injury, and was a contributing cause thereof. Appellant was not riding in a noisy or unwieldy vehicle drawn by horses, but on a swift and noiseless bicycle, susceptible, by slight pressure of the hand, of being instantly turned aside so as to avoid contact with the car. Had he looked or listened he would have known of its approach, and could have put himself out of danger up to the instant of his injury.
The petition for rehearing is overruled.
Robinson, O. J., Wiley and Henley, JJ., concur. Roby and Black, JJ., dissent.