On Petition for Rehearing.
Roby, C. J.-Appellee’s counsel support their petition for a rehearing by reference to the well-established doctrine that a judgment which is shown to be correct upon the facts will not be reversed on account of uninfluential error. It is true, as they contend, that in the absence of evidence *670tending to establish negligence upon the part of the defendant, the exclusion of evidence illustrating the care exercised by appellant’s ward does not afford cause for reversal. The candid and intelligent argument directed to these propositions may not fairly be ignored.
It is averred in the complaint that appellee ran a train consisting of two cars backwards along ETinth street, around a curve into Wabash avenue, a street running at right angles to ETinth street, while a parade of citizens was passing and said streets were filled at that place with spectators; that it negligently backed said train around said curve and over said streets, and in thus doing knocked appellant’s ward down and ran the car over him, inflicting the injuries complained of. It is also averred that appellee negligently failed to have a lookout on the non-motor car thus pushed upon said ward, and that it negligently placed the motorman where he could not keep a lookout.
The effect of the evidence is limited by the averments of the complaint. It does not appear that the absence of a lookout or the inability of the motorman to see the track caused or contributed to cause the injury complained of. The averment that the train was negligently started and backed around the curve requires the consideration of attendant circumstances, and its quality is largely determined by reference to them. A parade was passing over the streets, and a considerable number of spectators were present. The car which ran upon appellant’s ward was a non-motor, freight-car, loaded and pushed west by a motor car attached. As these cars approached the place where the accident occurred, they were upon the north one of the two tracks maintained by appellees in said streets. A passenger-car was at the same time being run over the south track in an opposite direction. The boy, as the east-bound car passed, crossed the south track in its rear, and, running, stumbled and fell upon the north track ahead of the freight-car aforesaid, which ran upon him.
*6713. Upon a motion for a peremptory instruction, the court is hound to accept as true all facts which the evidence tends to prove, and to draw, against the party requesting such instruction, all inferences which the jury might reasonably draw, and, in case of conflict in the evidence, to consider only that favorable to the party against whom the instruction is asked, that favorable to the other party being treated as withdrawn. Curryer v. Oliver (1901), 27 Ind. App. 424.
4. It can not he said, as a matter of law, that hacking the car in question along the street, under the attendant circumstances, was not negligent. Whether running the opposing cars at the same time was negligent or not, in view of all the attendant circumstances, the time, place and manner of the occurrence, considered together, was a- question for the jury.
This proposition is entirely distinct from the question of contributory negligence, upon which the running of opposing cars may have a hearing. Chicago, etc., R. Co. v. Hedges (1886), 105 Ind. 398. The court therefore erred in not submitting the issue of negligence tendered by the complaint.
5. While it is true that contributory negligence is a matter of defense, it -may he proved under the general denial, and the defendant is entitled to the benefit of such evideuce as is relevant thereto, introduced by the plaintiff. It having been shown by the appellant that his ward attempted to cross the track and fell upon it, and questions directed to his conduct prior to the accident having been asked and answered on cross-examination, it would have been only fair to hear in the same connection evidence as to his mental quality. 2. It is alleged that the ward was twelve years old. Whether he possessed the judgment and prudence usually possessed by hoys of that age, or whether he possessed less or more knowledge and prudence than boys of that age usually *672possess, was a matter of proof. He was bound to exercise all the care that he might reasonably have exercised by the employment of his faculties. Keller v. Caslcill (1894), 9 Ind. App. 670; Citizens St. R. Co. v. Hamer (1902), 29 Ind. App. 426. 1. The appellant does not aver that his ward was non sui juris, and is not therefore in position to assert such fact. Cleveland, etc., R. Co. v. Klee (1900), 154 Ind. 430; Citizens St. R. Co. v. Hamer, supra.
The opinion herein contains a discussion as to the powers of an electric railway to operate their cars in city streets. The subject is of such importance that the majority of the court do not feel justified in deciding it upon the argument which has been made, and the expressions relative thereto are those of the judge writing the opinion.
Petition for rehearing overruled.