*184Dissenting Opinion.
Comstock, P. J.-The facts specially found disclose that, at the time of the accident appellee was forty years old, in the full possession of his physical and mental faculties. lie was driving a gentle horse, under complete control, which he might have stopped at any time or place. When his horse was on the east track nothing prevented appellee’s knowing the close proximity of the car. All his' acts in attempting to cross the tracks were voluntary. There was no necessity or emergency controlling his movements. Nothing was done by appellant to mislead or deceive him, or throw him off his guard. The car was coming toward him, and he could'have observed its movements at all times when it was within five hundred feet. When the horse began to turn toward the tracks, the car was about two hundred and twenty-five feet away; and when it was on the east track, one hundred and twenty-five feet away; and when on the space between the two tracks, sixty feet away. He made a miscalculation of the time he would have to cross in front of the car, and concluded that he would have time to cross the track. When he was ten feet from the place of the accident he was traveling about three miles, and the car about twenty miles, an hour and one hundred twenty-five feet - away. When he was twenty feet from the place of the accident he was trayeling about five miles, and the car about twenty miles, an hour and two hundred twenty-five feet away. When he was thirty feet from the place of the accident he was traveling five or six miles, and the car twenty miles, an hour. He first came into danger when he was about ten feet from the place of the accident, which distance he traveled until he was struck. He did not think to observe the car while he was driving over the east track and the space between the tracks. Plaintiff was familiar with the location and all its conditions. The accident happened in a sparsely settled part of the city, one hundred sixty feet from the nearest *185intersecting street. Facts are found from which it may he inferred that the car might have been stopped within sixty feet. It is manifest that had he observed the car while on the east track or on the space between the tracks he could have avoided the injury. These findings conclusively show that appellee voluntarily and needlessly encountered danger apparent to casual observation, under circumstances free .from confusion and inconsistent with ordinary prudence. He simply miscalculated the time it would take him to cross and get out of the way. Many cases can be cited holding injured parties to be guilty of contributory negligence on facts not more clearly indicating rashness than in the case at bar. DeLon v. Kolcomo City St. R. Co. (1899), 22 Ind. App. 377, is a decision of the question of appellee’s negligence. Young v. Citizens St. R. Co. (1897), 148 Ind. 54; Citizens St. R. Co. v. Helvie (1899), 22 Ind. App. 515; Indianapolis St. R. Co. v. Tenner (1904), 32 Ind. App. 311; Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490; Robards v. Indianapolis St. R. Co. (1904), 32 Ind. App. 297; Indianapolis St. R. Co. v. Zaring (1904), 33 Ind. App. 297; Marchal v. Indianapolis St. R. Co. (1901), 28 Ind. App. 133; Kessler v. Citizens St. R. Co. (1898), 20 Ind. App. 427; Moran v. Leslie (1904), 33 Ind. App. 80; Korrady v. Lake Shore, etc., R. Co. (1892), 131 Ind. 261; Lake Erie, etc., R. Co. v. Pence (1900), 24 Ind. App. 12.
While all reasonable presumptions are indulged in favor of general verdicts, yet if the answers returned by the jury are irreconcilably in conflict therewith, they will overthrow the general verdict. While the general verdict finds that the plaintiff was free from contributory negligence, the facts specially found show plaintiff to have, been guilty of contributory negligence, and are irreconcilably in conflict with that verdict. Cleveland, etc., R. Co. v. Heine (1902), 28 Ind. App. 163; Bedford Quarries Co. v. Thomas (1902), 29 Ind. App. 85.
*186It is contended, however, that appellee’s conduct is not contributory negligence, because appellant could have avoided the injury by the use of ordinary care, after discovering the exposed situation of appellee. This claim is based upon the doctrine of last clear chance. Knowingly to inflict injury, when such injury can be avoided by the use of ordinary care, amounts to wilfulness. The motorman is not required to assume that an adult, in the full possession of his faculties, will needlessly expose himself to danger. The motorman was not bound to anticipate that appellee would turn upon the track. When the appellee turned the danger became imminent, upon the hypothesis that he would continue across the track. The car was then sixty feet away. It required this distance to stop the car. This gave the motorman no time to apprehend the dangerous situation in which the appellee had placed himself. Up to the time of plaintiff’s entering upon the track, no danger was to be apprehended from the speed of the car, for the accident occurred between crossings. The motorman had as much reason to anticipate that appellee was in time to cross the track in front of the moving car as had the appellee to believe that he could do so. If two parties are contemporaneously in fault, and by their mutual negligence an injury ensues to one, the doctrine of last clear chance does not apply. Robards v. Indianapolis St. R. Co., supra; Everett v. Los Angeles, etc., R. Co. (1896), 115 Cal. 105, 43 Pac. 207, 46 Pac. 889, 34 L. R. A. 350. If it had been apparent to the motorman that the horse was frightened or that appellee for any reason had lost control of the horse and was in danger, then it would have been the duty of the motorman to stop the car if possible. Citizens St. R. Co. v. Lowe (1895), 12 Ind. App. 47, 54, and eases cited. The doctrine under consideration applies when it is apparent that the party is in a position of danger from which he cannot extricate himself. Cleveland, etc., R. Co. v. Klee (1900), 154 Ind. 430; Krenzer v. Pittsburgh, etc., *187R. Co. (1898), 151 Ind. 587, 68 Am. St. 252; Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571. To justify the application of the doctrine in this case, the motorman must have had the last clear chance; that is, evident and last to avoid the danger after he had learned of it and knew that the safety of appellee depended solely upon him. Daily observation of human conduct does not lead to the conclusion that sane adults will place themselves in positions of open danger. The motorman was not required to assume that the appellee would court danger or disregard all prudence, and when appellee’s danger became apparent there was not time and space to stop the car. It is insisted, in this case, by the appellee that even if he was negligent in going upon the track, when struck by the car his negligence had ceased, because he was attempting to get out of the way of the approaching car; that after his negligence there was a change in the situation, and a new act of negligence was imputable to appellant, which became the proximate cause of the injury. If appellee was guilty of negligence in going upon the track, whether, in the instant of his injury, he was attempting to go backward or forward to get out of the way of the car, could make no difference. The rule of the last clear chance does not apply where the act of the injured party and the defendant are substantially concurrent. The conduct of the defendant in driving upon "the track cannot be separated from the injury. No court will hold that a railroad company may run down a party though he is negligently on its track, when by the exercise of ordinary care it can be avoided. No more can the driver of a private vehicle commit a like brutality. Defendants have been held liable when such acts have occurred, either because they showed wilfulness or a want of due care.
The majority opinion overthrows a doctrine, well recognized, that one cannot hold another responsible for errors of his own judgment. In effect it says, that to be excused *188from the results of one’s negligence, it is but necessary for the injured, party to show that he erred in his judgment. Negligence should not be encouraged, neither upon the part of common carriers or travelers. The prevailing opinion holds out to one willing to risk his life or limb in an unnecessary danger to cross a railway in full view and in front of an approaching car the assurance that, if he is unfortunate enough to receive injury, he shall be com- ' pensated therefor, notwithstanding the rashness of his own unnecessary act. All decisions up to this time hold that the duties and rights of the traveler and the common carrier are reciprocal. Such decisions are held for naught in the prevailing opinion. Being of the opinion that contributory negligence is still a defense in actions of this character, and that such defense is clearly established by the special finding of facts and the appellee’s own testimony, I am unable to agree in the opinion affirming the judgment.
Wiley, J.From the facts specially found I am clearly of the opinion that appellee was shown to be guilty of contributory negligence which would preclude his recovery. If the doctrine declared in the prevailing opinion is to obtain, it seems to me that the rule of contributory negligence is taken out of cases of this character.