On Petition for Rehearing.
Hadley, C. J.6. The court did, as pointed out by appellee in his brief filed in support of this petition, give instruetions which are unexceptional from the viewpoint of the appellant.
A careful review of the case does not result in a different conclusion. The law, as it relates to the standard of care required from a traveler along a street, who crosses a railroad track, is well settled and has often been declared. The duty to look and listen is one which, in the exercise of ordinary care, cannot be evaded. There is no absolute duty on the part of the traveler to stop, but he must exercise ordinary care commensurate with the known danger.
This case is distinguished from the case of Pittsburgh, etc., R. Co. v. Lynch (1909), 43 Ind. App. 177, and other *83cases cited by appellee on his petition for rehearing, in that, in this ease it appears that decedent’s son, who was riding with him, heard the whistle of the approaching train, and it must be presumed from the evidence that appellee’s decedent also knew that a train was approaching. He did not know where it was or at what rate of speed it was running. Under ordinary conditions he could see up the track for at least a quarter of a mile when he was within thirty feet of the west rail of the track. It is plain that it was on account of the fog that he could not see more than one hundred feet on the morning of the accident, but this fog was as apparent to him as to the persons running the train. With his knowledge that a train was approaching, and his knowledge that on account of a fog he could not see for a greater distance than one hundred feet, it was his duty to inform himself of his safety, and not to drive blindly into a place of known danger.
As is said in Evansville, etc., R. Co. v. Clements (1904), 32 Ind. App. 659: ‘ ‘ The railroad track on the level with the highway is itself a warning of danger. Obstructions to the view admonish the traveler of the peril to which he is exposed. Caution must always be exercised commensurate with the known danger. The failure of the engineer to sound the whistle or ring the bell does not relieve the person approaching the highway from the use of care and ordinary prudence for his safety. What is ordinary care in one case would not be ordinary care in another under a different state of facts. ‘In proportion as the danger increases must the vigilance of the person attempting to cross increase. ’ Oleson v. Lake Shore, etc., R. Co. [1896], 143 Ind. 405, 32 L. R. A. 149, and cases cited; Towers v. Lake Erie, etc., R. Co. [1898], 18 Ind. App. 684, and cases cited.” To the same effect is the case of Baltimore, etc., R. Co. v. Musgrave (1900), 24 Ind. App. 295.
Here the degree of care is different from that of a traveler approaching a crossing with no knowledge of an approach*84ing train, in which case he is entitled to rely, to some extent at least, upon the statutory signals to warn him of the train’s approach. Cleveland, etc., R. Co. v. Lynn (1909), 171 Ind. 589; Baltimore, etc., R. Co. v. Conoyer (1898), 149 Ind. 524.
In the case last cited the court say: “ It is true, as a legal proposition, that the mere omission of signals, or the like, cannot alone, ordinarily, be accepted by a person about to pass over a crossing as an assurance that there is no danger in crossing. * * * A person approaching a railroad crossing has the right to assume that the company will obey the law, by giving the required signals of an approaching train; and if such person, under the circumstances, after having exercised due care, and employed his senses of seeing and hearing, to ascertain if a train is approaching, and thereby avoid danger, can neither see nor hear an advancing or moving train, he is justified in presuming that he can pass over the crossing in safety.”
7. But a traveler cannot indulge in this presumption where, from any source, he has actual knowledge of an approaching train; and in this particular case, whether it was the noise of the vehicle in which he was riding, or some other intervening agency, that prevented decedent from hearing the rumble of the approaching train, is immaterial.
With this modification of the original opinion, the petition for rehearing is overruled.