On Petition foe Reheaeing.
Robt, P. J.The disposition of this appeal is not of great moment to the parties immediately concerned, and no further attention would be given to it if the principles involved were not of unusual importance. Those principles are not abstractly open to dispute, but abstract principle in itself avails nothing. It becomes potent only when correctly applied to facts coming within its reason, and therefore the problem which tries the patience and challenges the efforts of the courts is and must always be found in the application of principle to fact. „ All persons are equal before thé law, and the sure guaranty of every man’s right lies in the protection of the right of every other man; and the first and highest concern of the State, and therefore of its law, is for the lives and limbs of its citizens, not only for their good but for the good of the government which depends upon them.
Reference has been made, during the discussion growing out of this petition for rehearing, to “ancient cases dug up” for use in the dissenting opinion heretofore filed. The authorities therein cited speak for themselves. The writer believes that it is the duty of the courts to regard prece*551dents. Broadly speaking, they are expressive of the law as it is and ought to he. Innovations, created by unwise statutes or unjust decisions, mark the exception and not the rule. But, waiving the antique rules of the common law, let us consider, irrespective of precedent, historically and practically, the reason and sense of the situation.
When the country was new, its population sparse, its forests uncut, and its streams unbridged, the construction of a railroad was a great and difficult undertaking. They were then, as they are now, necessities. The development of that locality which was so fortunate as to be penetrated by a railroad was assured. Money was not plentiful, and the public built the railroads. Taxes were levied, subsidies voted, contributions made and grading and excavating was done gratuitously by the farmers along the line. Public-spirited citizens guaranteed the raising of stated amounts beyond the ability of the town to pay, and impoverished themselves in making good the guarantee; but the railroads were built, and the returns were so vast that the foreclosures and reorganizations, by which stocks and bonds issued to individuals and municipalities were wiped out, seemed of little importance. In that eager, hopeful, expanding day, the details of railroad construction and operation were crude. Parallel lines of iron rails reaching from Chicago to New York were the sole concern. They sprawled across the prairie, through the town, and into the city. Had they first been laid through a populous, compact and wealthy state, great care would naturally have been exercised from the beginning. They would have been fenced and guarded, overhead bridges and underground passageways would have been a first requisite. Railroads were not thus constructed in this country. Grade crossings were the rule, and the idea that any duty rested upon the company, except as tardy legislatures declared it, was not entertained. The citizen or the officer who at that time did anything to delay the rapid completion of these great public highways became *552thereby “an enemy of the people.” Legislatures were imbued with the spirit. Terre Haute, etc., R. Co. v. State, ex rel. (1902), 159 Ind. 438. The courts were kind to such corporations in many ways. Columbus, etc., R. Co. v. Arnold (1869), 31 Ind. 174, 99 Am. Dec. 615; New York, etc., R. Co. v. Perriguey (1894), 138 Ind. 414; Terre Haute, etc., R. Co. v. Graham (1884), 95 Ind. 286, 296, 48 Am. Rep. 719.
The doctrine of contributory negligence was speedily invoked to protect them from liability for damages on account of maiming or killing persons at highway crossings. Eor a long time such question was left to the jury, to be by it determined according to the standard of the conduct of a reasonably prudent man under the same or similar circumstances. Ohio, etc., R. Co. v. Collarn (1881), 73 Ind. 261, 270, 38 Am. Rep. 134. This standard was ultimately forsaken, and the courts prescribed the duty of a traveler exercising ordinary prudence. He must have looked both ways and listened attentively, and, if he could see, he was presumed to see, although he did not see, and, if he could not see, he was guilty of negligence for not getting out and going ahead until he could see, in the exercise of the “extraordinary care” which was now enjoined upon him. Chicago, etc., R. Co. v. Thomas (1900), 155 Ind. 634. The effect of the application of this' doctrine was practically to exonerate the railroad company from liability in actions based on negligence, because of casualties occurring at highway crossings. There has been a slight tendency recently to mitigate the severity of the holdings (Greenawaldt v. Lake Shore, etc., R. Co. [1905], 165 Ind. 219) ; but in the main they are still enforced. The disregard of the rights and welfare of others by one person always arouses resentment against him, and such disregard on the part of such corporations, unchecked by the courts, has produced a result which might have been foreseen. Manifestations of such disregard are not confined to cases of the class under *553consideration, but such cases are expressive of it. The average citizen, instead of regarding a railroad company •with the kindliness that his father felt for it, has come to regard it as an enemy. Railroads are as beneficial and essential as they ever were, more greatly used, the public individually more dependent upon them, and their utility is more fully recognized than formerly. But their management has aroused a spirit of opposition, because of which the representatives of such companies who appear in court seem to have lost faith in the jury system, overlooking the fact that the vitality of that system lies in the disposition of common men to stand- together against any influence which they regard as inimical. By the social compact members of society agree to be bound by the judgment of their peers, and- corporations operating railroads form no exception to the rule. An individual who has come into such disfavor in his community as to be sent to the State’s prison on less than legal evidence can recover its favor by changing -his habits, and in no other way. It may be strictly legal for a railroad company to refuse to attempt to make any restitution to a person injured by it because his view of an approaching train was obscured by smoke (Oleson v. Lake Shore, etc., R. Co. [1896], 143 Ind. 405, 32 L. R. A. 149), but the occurrence seems to be distasteful to the average man, and, in order to overcome the impression such incidents produce, it may be necessary, among other things, to kill fewer people at grade crossings.
Another condition, which was not counted upon, exists. A modern railroad corporation is a money-making machine. It is within the protection of the law as a person, hut it is a great deal more than a person. Its sole function is to make money. Its board of directors take no share of responsibility to themselves as individuals. They give only general orders, and are concerned only with results — with annual statements which show increased dividends. The superintendent obeys the general orders, and feels absolved *554from responsibility for details necessary to carry them out. The engineer who loses a few minutes from the schedule finds a telegram at each station demanding why, and the necessity of daily bread drives him to take chances and make up time regardless of fog, or of the careless wayfarer who may be upon the track around the bend. This moneymaking machine is not concerned over the statute defining manslaughter. It has but one vulnerable point — it responds to but one sentiment. It will not continue that which costs it money and lowers dividends. If it is cheaper to kill twenty of its faithful employes, one at a time, than to build a new bridge, they will have to die. Hollingsworth v. Chicago, etc., R. Co. (1903), 160 Ind. 259; Louisville, etc., R. Co. v. Wright (1888), 115 Ind. 378, 7 Am. St. 432. If it is cheaper to build a bridge, a bridge will be built. If it will increase dividends to enforce temperance on the part of its employes, the corporation will at once take an advanced position upon the temperance question. Immunity from the payment of damages on account of grade-crossing accidents has probably had as much to do with the prevalence of such accidents as the increased rate at which it is possible to run a locomotive engine. Exemption from liability on account of such occurrences should logically follow from the precedent fact that the owners of the engine have taken every step which care and foresight could devise to guard the track.’ The exercise of care is the only foundation upon which such exemption can justly be placed. A human conscience could only justify its possessor in sending so dangerous a missile as a swiftly moving train through populous cities, country towns, and over highways, knowing the peril which it carries,' by the reflection that nothing had been left undone to safeguard innocent persons who may be imperiled thereby.
The superstructure has been erected before the foundation was laid. The superstructure is exemption from liability on account of crossing accidents. The foundation *555for such exemption, without which it has nothing to stand upon, is proof that the companies have done all that a reasonable man, owning such railroad, in view of his moral responsibility, ought to do to guard the track and thus avoid killing innocent persons, and that, too, without regard to thoughtlessness on their part, for it is as much a crime to kill a thoughtless as a thoughtful man. Nothing remains except to build the foundation now. Accidents such as the one complained of ought not much longer to be possible. The ingenuity which is expended in escaping liability for damages on account of them, otherwise directed, would devise appliances to protect every grade crossing. Overhead bridges, undergrade passageways, watchmen, and gates may be had at any time. It is not a question of expense, but of life. The public pay a price adequate to provide every possible safeguard, and no sound policy can be advanced for the exoneration of the management of the railroad from civil liability while such safeguards are lacking, and the assertion of the public’s rights will surely cause them to be provided. The settled principles of the “ancient law” and of the modern law regarding wilful injuries are applicable to the servant (State v. Dorsey [1889], 118 Ind. 167, 10 Am. St. 111) ; why not to the master ?
It seems to me that judges who have obligated themselves to administer justice, without regard to person, ought to hesitate a long time and have cogent cause before setting-aside such judgment as that rendered by the trial court in this case; and, with great deference, I must respectfully submit that this petition should be granted, and such judgment affirmed.