On Petition for Rehearing.
Roby, J.14. Appellant, in support of its petition for a rehearing, says: “We undertake to say that the authorities are unanimous, explicit and emphatic upon the proposition that, before any man can be held liable to another who has negligently placed himself in a position of peril, the first party must actually know not only that the person is in a position of peril, but that he will remain so.”
15. If tire charge were one of wilful injury, the proposition stated would be more nearly correct. The authorities cited are cases where persons have been injured while upon the tracks of steam railroads, by locomotive engines, and cars propelled by such engines.
16. The duty owed by a corporation operating a steam railroad to footmen walking along or across its tracks is widely different from the duty owed by a street car company to travelers upon the city streets, The railroad company *215is under no obligation to exercise active vigilance as to such trespassers. It is under the duty of refraining from the infliction of wilful injury upon them. Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571.
17. The doctrine which appellant asserts has no application to railroads laid in the street, to the use of which the public are entitled in common with the company, it consequently being bound to anticipate the rightful presence of men, women and children on its tracks and in front of its cars. The application of such doctrine to cases like the one at bar would result in releasing the street car company from the duty of keeping a constant lookout; a duty which the law demands of corporations which have received licenses to propel their cars at a high rate of speed along the surface of the highway in populous districts where Hie public must of necessity pass and repass.- To apply it thus would be to ignore the patent fact that the car company, and not the foot-passenger or driver, propels the vehicle which constitutes the instrument of danger, because of which the duty devolves upon it to exercise constant care and watchfulness to avert injury to the other members of the public who also use the highway. If this doctrine is sound, the company would be exonerated, although its motorman looks constantly to the rear, or even goes forward with his eyes shut. 2 Thompson, Negligence (2d ed.), §14:76; 1 Shearman & Redfield, Negligence (5th ed.), §99.
There was evidence in the case at bar from which the jury might find that appellant; by the exercise of reasonable care after its motorman discovered appellee, or after ho should have been discovered by the exercise of reasonable diligence, could have averted the collision and avoided injury. Thé general verdict therefore carries with it a finding of such facts. They require an affirmance of the judgment.
The petition for rehearing is overruled.