*303Dissenting Opinion.
Roby, J.Action by appellant against appellee for personal injuries alleged to have been occasioned by appellee’s negligence. General verdict for $700 for appellant upon the first paragraph of complaint. With the general verdict the jury returned answers to interrogatories. Appellee’s -motion for judgment upon the answers to interrogatories notwithstanding the general verdict sustained, and exception. Judgment for appellee. Error is assigned that the court erred in sustaining the motion for judgment upon the answers to interrogatories notwithstanding the general verdict. •
The material averments of the paragraph are, in substance, that, at the time of the alleged injury, appellee maintained and operated a double-track street railway line upon Illinois street, in Indianapolis; that appellant was traveling along said street on a bicycle, going south, riding on the outside of the west track near the outer rail; that appellee’s ear was also traveling south behind appellant, at the time of the collision; that appellant had been in full view of the motorman in charge of said car for some time prior to the infliction of the injuries, and had been riding in. a direct south line near said outer rail for many rods in full view of the motorman; that notwithstanding said facts the motorman negligently and without regard to appellant’s rights ran the car at great speed during all said time and distance without giving appellant any warning of the ear’s approach until it struck him; “that said motorman could easily have warned plaintiff of the approach of said car by sounding his gong, or by giving other alarms, so as to have prevented said collision, and could also have checked and slackened the speed of said car after the danger of collision became apparent to him, and could have avoided the infliction of said injuries; but plaintiff avers that said motorman did not give any alarm whatever, and did not check or *304slacken the speed, of said car after the aforesaid danger became apparent to him.”
The answers to interrogatories show, in substance, the following facts: On the day appellant was injured, Illinois street was about sixty feet wide from curb to curb, extending north and south from Market street in a straight line for many squares. The entire roadway of said street was paved with asphalt from curb to curb, and open and in use for general travel. In said street there were two street railway tracks laid even with the surface of the street, each about four feet eight and one-half inches from rail to rail, and so placed as to be equally distant from the center line of the street, and about five feet apart. The cars going south on Illinois street use the west track, and those going north the east track, and all of said cars projected over the rails of the track upon which they ran about ten or twelve inches on each side. At the time of the accident plaintiff was a man thirty years of age, fully possessed of the faculties of hearing and seeing, and having ordinary mental attainments, judgment, and physical strength. lie was familiar with Illinois street at the place of the accident, and the location of the car tracks therein, and the manner and frequency-with which cars were operated thereon. At the time there were three separate car lines, the cars of which used the tracks on Illinois street for at least one square in both directions from Market street, and there were cars passing along the tracks at that place very frequently and at irregular intervals. The plaintiff had been riding along by the west rail of the west track about three hundred feet, and so close to it (about twelve or fifteen inches) that a car could not pass on that track without striking him. TIis left shoulder was eight or ten inches from the west rail. During all the time he was in full control of his bicycle, and in full possession of all his faculties and physical powers. While he rode beside the street car track he was riding at a speed of four or five miles an hour, and the car *305was running ten or twelve miles an hour, and was running at that speed when it struck the plaintiff. There was no obstruction to the view between the plaintiff and the car at any time while plaintiff was riding beside the track. He was about three hundred feet from the place of the accident when he last looked toward the north to see if any car was approaching. He diá .not see the car with which he after-wards collided when he so looked. Plaintiff was struck by one of defendant’s south-bound electric cars, and thrown to the pavement, while riding a bicycle along the outside and near, the track of the defendant company on North Illinois street, near Market street. The motorman in charge of said car saw the plaintiff near said track on which said car was running in time to have stopped said car before overtaking plaintiff, but made no effort to stop it. No gong or other alarm or warning of the approach of said car just prior to the collision was given. Plaintiff did not know that said car was approaching him before it struck him. The car and the plaintiff were both going south when the plaintiff was struck. The motorman had reason to believe, after he saw plaintiff on his bicycle, near the outer rail of said car track, and before the collision, that the car was liable to come in contact with the plaintiff, or the bicycle on which he was riding, unless he slackened the speed of the car, or gave the plaintiff warning of its approach. The motorman knew for some time before the collision that the plaintiff’s body, as he was riding near said track, projected far enough over to the east to come in contact with the end or side of the said car if he (the motorman) should continue the movement of said car, and plaintiff should continue on his way the same distance from the track, until said car should overtake him. There was not at any time after the plaintiff began to ride beside the said rail anything but roughness of street to prevent him from turning away from said rail at any time if he *306Lad so wished to do.' If plaintiff had at any time, while riding beside the track, turned to his right, away from the track, about four feet, he would have gotten out of danger of any car which might run on that track. He could, without any danger to himself, but only with some inconvenience, because of the roughness of the roadway of the street, have turned off to his right, into the roadway, at any time or place while and where he was riding beside the track. The southwest corner of the car going south 'came in contact with the plaintiff on his bicycle. The noise made by the ordinary operation of the car, at the time of and just before the plaintiff’s accident, could have been heard by the plaintiff, if he had listened for it, three hundred feet. The jury also answered that there was no evidence as to the following facts, about which they were interrogated, viz.: That the motorman knew that his car had struck the appellant at the time of the collision; whether there were other vehicles or pedestrians in the west roadway of Illinois street, near the plaintiff, when he was struck; within what distance the car coidd have been stopped when it approached the place where plaintiff was struck; as to what plaintiff did, as he rode beside the track, to indicate that he could not or would not, when it became necessary to do so, turn away from the track to avoid the car.
The effect of the general verdict is to establish the facts averred in the complaint. It must therefore be taken as true that the motorman could have checked and slackened the speed of the car after the danger of collision became apparent to him, and could have avoided the infliction of said injuries, and that he did not give any alarm whatever, and did not check or slacken the speed of his car after appellant’s danger became apparent to him. The answers to interrogatories upon the points indicated are in accord with the general verdict.
In the case of Bedell v. Detroit, etc., Railway (Mich.), 92 N. W. 349, decided by the supreme court of Michigan, *307the jury were instructed, in part, as follows; “The ease here is not one arising upon a street crossing, which has been a very fruitful source of litigation, but the situation is one where the decedent was riding upon his wheel in the public highway, close beside the defendant’s railway, and Was overtaken and killed by a ear coining from behind. It is sometimes said, very correctly, that, if one discovers another to have been negligent, he must take precautions accordingly, omitting which, he is liable to the other for . the damages which follow from his own want of care, for, however related the separate negligences may be, the one can not bar an action for the other, unless it be contributory; and, though an unseen position might contribute to an accident, a discovered one can not. The decedent, Mr. Bedell, was not a trespasser upon the street car tracks in any sense. The right of the street railway in the street is only to use it in common with the public. It has no exclusive right of travel, even upon its track, and it is bound to use the same care in preventing a collision as the driver of a wagon, or any person crossing or entering upon the highway. Street ears have precedence, necessarily, in the portion of the way designated for their use. This superior right must be exercised, however, with proper caution, and a due regard for the rights of others; and the fact that it has a prescribed route does not alter the duty of the defendant railway company to the public, who have the right to travel upon its track until they are overtaken by its cars. In this case there is no dispute but that the motorman saw the decedent, Mr. Bedell, for súme time and for a considerable distance before he overtook and struck him with the car. .'It is undisputed that the motorman saw.'the decedent riding upon his wheel along a path in very close proximity to the track of the railway company. It is in dispute, however, whether the bell or gong was rung by the motorman. The motorman himself testifies that the' decedent gave no indication ■ that he heard the bell or gong of the rapidly *308approaching car until it was too late to escape disaster. Applying some of these principles to the facts in this case, I instruct you that: * * * In other words, you are to determine from the evidence whether or not’the plaintiff has shown by a fair preponderance of the evidence that under the facts and circumstances known and apparent to the motorman, and in view of the situation as it appeared to him, this car was run at a high and dangerous rate of speed, with reckless and wanton disregard of consequences, and whether or not this accident was caused thereby.” Tho instruction was approved as a correct statement of the law applicable to the facts. Bedell v. Detroit, etc., Railway, supra; Montgomery v. Lansing, etc., R. Co., 103 Mich. 46, 60, 61 N. W. 543, 29 L. R. A. 287; Citizens St. Railway v. Steen, 42 Ark. 321; Tunison v. Weadock (Mich.), 89 N. W. 703; Shaw v. Salt Lake City R. Co., 21 Utah 76, 59 Pac. 552.
“If the'motorman, when he saw appellant on the track, had reason to believe that he was unconscious of the danger or unable to avoid it, it was his duty to use every reasonable effort to stop the car and arouse the attention of appellant.” DeLon v. Kokomo City St. R. Co., 22 Ind. App. 377; Goldrick v. Union R. Co., 20 R. I. 128, 37 Atl. 635.
Judge Mitchell, in that accurate form of expression, of which he was master, states the law applicable to this case as follows: “I\(e quite agree that if the driver of the express wagon saw the appellant standing in the street, it was his duty to turn out and not drive his wagon upon him, and if the facts presented a ease in which it appeared that the driver, after seeing the appellant, had any reasonable ground to apprehend that he was not aware of the approaching wagon, and was unconscious of the danger that was imminent, a recovery would have been justified notwithstanding the antecedent negligence of the appellant.” Evans v. Adams Express Co., 122 Ind. 362, 366, 7 L. R. A. *309678; Evansville, etc., R. Co. v. Hiatt, 17 Ind. 102, 105; Krenzer v. Pittsburgh, etc., R. Co., 151 Ind. 587, 592, 68 Am. St. 252; Summit Coal Co. v. Shaw, 16 Ind. App. 9; Cleveland, etc., R. Co. v. Klee, 154 Ind. 430, 434; Citizens St. R. Co. v. Hamer, 29 Ind. App. 426.
It can not be held, as a matter of law, that a person traveling upon a street along which, a street car track is laid is bound constantly to look backward when driving upon or in close proximity to such track. He has a right to assume, and to act upon the assumption, that warning will bo given by those in charge of the approaching car behind him, and that the motorman will not knowingly or negligently run him down. Rooks v. Hauston, etc., R. Co., 41 N. Y. Supp. 824; Tunison v. Weadock, supra; Montgomery v. Lansing, etc., R. Co., supra; Rouse v. Detroit Electric Railway, 128 Mich. 149, 87 N. W. 68; Stringer v. Frost, 116 Ind. 477, 9 Am. St. 875; Scofield v. Myers, 27 Ind. App. 375.
The principles governing the conduct of persons using public highways are not affected by the character of the vehicle or the name of the individual. They are no different when invoked to govern the conduct of persons operating street cars, automobiles, and bicycles than when applied to the regulation of those otherwise using the street. The idea that appellant was guilty of negligence in riding a bicycle upon the city street at the side "of or between the car tracks is unfounded. He had exactly the same right to use it that appellee had. The street car does have a preferential right to the use of that portion of the street covered by its tracks arising from the reasonable necessity of its operation; running in a fixed course it can not be turned to the right, and hence the law of the road, applicable to other vehicles, does not apply to it. It can not pass around obstructions on its tracks; hence others using the street must stand aside and permit it passage. This preferential, or, as it is sometimes less accurately called, superior right, does not relieve the *310operator of the car from obligations imposed upon those using the highway. Generally stated all such persons are bound to use ordinary and reasonable care under the particular conditions and circumstances existing to avoid injuring others and to escape injury themselves, and they have a right to expect like care from others. On the public highways, .as in the courts of the land, men meet on exactly equal terras.
The main opinion does not state accurately the issue made by the complaint. If the conclusion reached is based upon any proposition of law, I have been unable to discover what it is.
A review of the authorities governing the case at bar would unduly extend this opinion. The following decisions by various courts of various states cover the case most thoroughly, and are in accord with the principles heretofore expressed by the courts of Indiana. Vincent v. Norton, etc., St. R. Co., 180 Mass. 104, 61 N. E. 822; Fenner v. Wilkes-Barre, etc., Traction Co., 202 Pa. St. 365, 51 Atl. 1034; Consumers, etc., St. R. Co. v. Pryor (Fla.), 32 South. 797; Manor v. Bay Cities, etc., R. Co., 118 Mich. 1, 76 N. W. 139; Shilling v. Metropolitan St. R. Co., 62 N. Y. Supp. 403; Shea v. Potrero, etc., R. Co., 44 Cal. 414; Mahoney v. San Francisco, etc., R. Co., 110 Cal. 471, 475, 42 Pac. 968; Robinson v. Louisville R. Co., 112 Fed. 484, 50 C. C. A. 357; Tashjian v. Worcester, etc., St. R. Co., 177 Mass. 75, 81, 58 N. E. 281; Tacoma R., etc., Co. v. Hays, 110 Fed. 496, 49 C. C. A. 115; Hall v. Ogden City St. R. Co., 13 Utah 243, 253, 44 Pac. 1046, 57 Am. St. 726; Saunders v. City, etc., R. Co., 99 Tenn. 130, 134, 41 S. W. 1031; Citizens Rapid Transit Co. v. Scigrist, 96 Tenn. 119, 33 S. W. 920; Woodland v. North Jersey St. R. Co., 66 N. J. L. 455, 49 Atl. 479; Shea v. St. Paul City R. Co., 50 Minn. 395, 52 N. W. 902; Laethem v. Ft. Wayne, etc., R. Co., 100 Mich. 297, 58 N. W. 996; Citizens St. Railway v. Steen, 42 Ark. 321; Shaw v. Salt Lake *311City St. R. Co., 21 Utah. 76, 59 Pac. 552; McClellan v. Ft. Wayne, etc., R. Co., 105 Mich. 101, 62 N. W. 1025. The petition for a rehearing should he granted.