*144On Petition for Rehearing.
Lairy, J.12. — In the brief of appellees on petition for rehearing, certain averments of the complaint are referred to in connection with the interrogatories, and we are asked to consider the facts so averred as true in passing on the motion for judgment on the interrogatories. In passing on this motion the court will look to the pleadings for the purpose of determining what the issues were and what facts could have been proved under them. This is the only purpose for which the pleadings are considered in passing on this motion.
Appellees urge that the original opinion is in conflict with the case of Chicago, etc., R. Co. v. Hedges (1889), 118 Ind. 5, 20 N. E. 530. In that case the special findings showed that the person struck by the train was a pedestrian, and that he walked onto the track when the car which struck him was 200 feet away, and stood there, without apparently seeing the approach of the car, until he was struck. There was nothing to prevent him, at any time before the accident occurred, from getting out of the way of the car, had he observed it, and his want of care in failing to see the approach of the car continued up to the time of the injury. If his foot had been fast, or if he had fallen on the track so as to be unable to escape the threatened danger by the exercise of due care, a different rule would have applied. In this case, appellant was driving a team hitched to a wagon, and, under the averments of the complaint, the liability of appellees is made to rest on the doctrine of last clear chance. Under the issues it was competent for appellant to show that the conditions surrounding him in the street were such that he could not, by the exercise of care, escape from his place on the tracks in time to avoid the injury. The jury found by its general verdict that appellant was free from contributory negligence. Evidence of the character referred to would tend to support the general verdict as to this issue.
*14513. On this issue the general verdict can rest on such evidence, and not be in conflict with answers to any of the interrogatories. It is the duty of this court, under the authorities, so to reconcile the answers to interrogatories with the general verdict.
Petition overruled.
Note. — Reported in 96 N. E. 167, 97 N. E. 124. See, also, under (2) 31 Cyc. 195; 38 Cyc. 1869; (3) 38 Cyc. 1927; (4) 31 Cyc. 116, 680; (6) 31 Cyc. 84; (7) 36 Cyc. 1565; (8) 36 Cyc. 1646; (9) 36 Cyc. 1584; (10) 36 Cyc. 1005; (11) 36 Cyc. 1646; (13) 38 Cyc. 1927. As to when contributory negligence dbes not bar recovery, see 8 Am. St. 850.