On Petition for Rehearing.
Hottel, J.— Appellant has- filed a petition for rehearing in this case and its counsel in the brief in support thereof press upon us with such earnestness and sincerity their reasons for believing that the court has committed error in its original opinion, that we are led to give additional consideration to some of the questions determined therein.
18. If this were an action by the hack driver, or, if his negligence could be charged against appellee’s decedent, or, if, under the averments of the complaint or the answers to interrogatories, the negligence of such driver could be said to be the sole proximate cause of the death of the decedent, we would be persuaded that appellant is right in its contention that a rehearing should be granted. In our consideration of the complaint we were not unmindful of the rule so earnestly urged by appellant in its original bi’ief and now again emphasized which required us, in ease *135of doubt upon the pleading, to construe the same most strongly against the pleader and to indulge against its validity all reasonable inferences not excluded by positive and direct averment. Shenk v. Stahl (1905), 35 Ind. App. 493, 498, 74 N. E. 538; Wabash R. Co. v. Beedle (1910), 173 Ind. 437, 445, 90 N. E. 760; Pond v. Sweetser (1882), 85 Ind. 144; State, ex rel., v. Castell (1887), 110 Ind. 174, 187, 11 N. E. 219; Hays v. Hays (1907), 40 Ind. App. 471, 473, 82 N. E. 90, and authorities cited. It should be remarked, however, in this connection, that this rule when applied to a complaint is applicable to only such averments as are necessary to state the cause of action.
19. When all the necessary and essential averments of a cause of action are directly and positively stated, no mere inferences of a defense to such action suggested by any averments contained in such complaint will overcome or defeat the cause of action so stated and render the complaint subject to demurrer. Cole v. Searfoss (1912), 49 Ind. App. 334, 97 N. E. 345; Cleveland, etc., R. Co. v. Clark (1912), 51 Ind. App. 392, 97 N. E. 822.
20. In this case it is urged that the complaint nowhere charges that the decedent or the driver of the hack was without fault, or that the decedent or the haekman did not see the train. Contributory negligence as appellant well understands, is now a defense and need not be negatived by the complaint. Granting that the appellant’s contention that the hack driver could have seen, and, in fact, did see the train just before he attempted to cross the track, is correct, this would not show the decedent guilty of any contributory negligence but would only show the hack driver guilty of such negligence.
21. The fact that the hack driver’s negligence cannot be attributed to the decedent, is well settled by the authorities cited in the original opinion. It is equally well settled that such negligence of the hack driver, if merely contributory, will not relieve appellant from liability for its negligence. It is clear *136from the averments of this complaint that the negligent acts charged against appellant influenced the acts and conduct of the hack driver and caused him to do and act as he did, and under such circumstances his acts, though negligent and contributing to the proximate cause of the injuries resulting in the death of appellee’s decedent, would not relieve appellant from liability but would only have the effect of making the other common carrier by whom such hack driver was employed and in whose hack such decedent was a passenger, also liable as a joint tort feasor. "What we have said in the discussion of the complaint is equally applicable to the question presented by the motion for judgment in appellant’s favor on the answers to interrogatories.
The motion for rehearing is therefore overruled.
Note. — Reported in 99 N. E. 126; 100 N. E. 383. See, also, under (I) 33 Cyc. 971; (2) 33 Cyc. 1057; (3) 33 Cyc. 942; (4) 33 Cyc. 1045; (5) 33 Cyc. 1042, 1053; (6) 33 Cyc. 967, 1058; (7) 38 Cyc. 1928; (8,16) 33 Cyc. 1142; (9) 33 Cyc. 984, 1015; (10) 29 Cyc. 634; (11) 33 Cyc. 1142; 38 Cyc. 1925; (12) 33 Cyc. 987; (13) 29 Cyc. 496; (14) 3 Cyc. 315, 316; (15) 29 Cyc. 487; 38 Cyc. 483; (17) 33 Cyc. 958; (18) 31 Cyc. 78; (19) 31 Cyc. 109, 288; (20) 29 Cyc. 575; (21) 33 Cyc. 1015. As to speed of train as evidence of negligence, see 53 Am. Rep. 52. As to the care a railroad company must exercise at highway crossings, see 44 Ami. Rep. 470. As to imputing hack driver’s negligence to the person inside, see 110 Am. St. 291; 8. L. R. A. (N. S.) 597. As to duty of highway traveler to keep open his eyes and ears at railroad crossings, see 90 Am. Dec. 780. As to joint and several liability in cases of concurrent negligence, see 16 Am. St. 250. For a discussion of the speed of a railroad train as negligence in the absence of a prohibitory statute, see 7 Ann. Cas. 988.