Dissenting Opinion on Petition for Rehearing.
Felt, J.I am unable to agree with the prevailing view of my associates that the petition for rehearing in this case be overruled. "While entertaining this view, I am in accord with most that is said in the carefully prepared, logical and able opinion; but my divergence of view strikes at a vital point of the case and compels me to favor a rehearing. The opinion states: “In our judgment the undisputed evidence shows that the plaintiff failed to use due.care in view of her age and experience.” The ultimate question to be determined is the alleged contributory negligence of plaintiff. In approaching this question, the opinion declares as a matter of law that this child eleven years of age contributed to its injury. I cannot agree that ‘ ‘ the undisputed evidence ’ ’ warrants such conclusions, and I hold that the question was for the jury, to be determined from all the facts and circumstances of the ease, pertinent to the question, including plaintiff’s age, capacity and experience.
I concur in the view that plaintiff had reached the age when she is presumed in law to be capable of exercising some judgment and discretion, and was required to exercise such degree of care for her own safety as may reasonably and ordinarily be expected of children of like age,, experience and capacity. In the case of Cleveland, etc., B. Co. v. Klee (1899), 154 Ind. 430, 432, 56 N. E. 234, it is said: “Regarding the conduct of a child between the age when he is eon*595clusively presumed to be incapable of negligence and tbe age when he is conclusively presumed to be negligent under the same circumstances that would reveal an adult’s negligence, the law is neutral; it lays down no conclusive presumption. Of such a child it cannot be said as a matter of law that his age shows him either incapable or capable of negligence. That question is to be determined as a fact in every such case.” In Baltimore, etc., B. Co. v. Hickman (1907), 40 Ind. App. 315, 317, 81 N. E. 1086, this court said: “The standard of reasonable care applicable to an adult is not the standard of care required from a child ten years old. * * * The measure of the duty of care required from a child has frequently been stated, and whether in the given instance it was exercised is universally held to be a question for the jury.” This is unquestionably the general rule and the instances in which a court can declare a child, though sui juris, negligent as a matter of law, are rare. It can only be safely done where the evidence is clear and definite and no other reasonable inference or conclusion can be drawn except that of the child’s negligence.
There is evidence in this ease tending to prove that plaintiff was eleven years old and lived with her mother at the corner of Roosevelt Avenue and Lewis Street; that her married sister lived in the same house and had a child three years old, who just before and at the time of the accident was on the opposite side of the street near a lumber yard; that plaintiff went across the street to get this baby to return home but failed; that plaintiff was in the roadway between the east curb and the east street ear track; that from that point she looked both ways, up and down the track, and started back across the street in the direction of her home; that an east or outbound street car passed her on the south track and met an inbound car on the north track about 75 feet from the place of the accident, running without any warning of its approach, at the rate of 20 or 25 miles an hour; that the fender of the inbound car struck plaintiff *596and the ear ran over her and cut off one of her legs. There is other evidence contradictory to parts of the foregoing testimony, but we are not to weigh the evidence, and if from the facts and circumstances shown by the evidence reasonable minds may draw different inferences or conclusions as to plaintiff’s care, we cannot declare her guilty of contributory negligence as a matter of law.
It is said in the opinion that “plaintiff walked across the south street car track about fifteen feet in front of the Bright-wood car, and stepped upon the north track about four feet in front of the Columbia street car.” While there is evidence tending to prove the foregoing statement, in my view of the testimony, it is not the “uncontradicted evidence” but, on the contrary, the evidence in the record not only makes possible other and different conclusions* but shows that such other conclusions are more probable and reasonable than the one stated in the opinion. In considering this question, we may take the evidence most favorable to plaintiff and draw all reasonable inferences. We find evidence at least tending to prove that she passed behind the outgoing car and stepped upon the north track when the car was considerably more than four feet from her and that she was struck because of the speed of that car approaching without warning; that her view of the Columbia ear was obstructed by the outgoing car for considerable distance. Furthermore, if the outgoing car passed the incoming car approximately 75 feet from the place of the accident, and the latter was running at the rate of 25 miles per hour, it would require but a fraction over two seconds of time for the ear to reach the child after it passed the outgoing car. If the plaintiff were an adult, considering all the foregoing facts and circumstances, it would be carrying the application of the rule to its extreme limit to declare her guilty of contributory negligence as a matter of law. The fact that a child may have sufficient knowledge to charge it with notice of danger is by no means conclusive on the question of its *597capacity to avoid injury. The characteristics and natural tendencies of children are matters of common knowledge of which the courts may judicially know. .Knowledge, age and experience are to be considered where the child has attained to an age when it is capable of exercising some care for its own safety. These necessarily include the immature judgment and natural impulsiveness of the child. Angola B. etc., Go. v. Buts (1912), 52 Ind. App. 420, 98 N. E. 818. It is said in the opinion: “If it appeared from the evidence that she used some care in this respect, it would be for the jury to say whether the care used was such as might be ordinarily expected from a child of her age and experience; but when it appears from the undisputed evidence that she used no care in this respect, and where no excuse is shown for a failure to use the care of which she was capable, the question is one of law for the court. * * * True she says that she looked up and down the street, and that she saw no car; but the physical facts remain that the ear was there within a few feet of her at the time she stepped upon the track, that it was daylight and that her view was unobstructed.” In addition to the evidence already shown, there was testimony tending to prove some play, and possibly disturbance, among a group of little children on the east side of the street participated in by plaintiff, just before her injury; that she looked .back in the direction of the children; that the outgoing car could not be seen until it came around the bend where the car turned off of Lewis Street into Roosevelt Avenue; that from plaintiff’s changing position on the street as she advanced, it was not only possible, but most probable, that the incoming car was hid from her view for considerable distance. All these facts and circumstances afford ample evidence from which it may be reasonably inferred that her attention was momentarily drawn in some direction other than that of the approaching car without compelling the conclusion that she was guilty of negligence contributing to her injury. In view of this situation, it is a harsh rule *598to invoke “the physical facts” to declare her guilty of contributory negligence as a matter of law. All the facts and circumstances, including her age, experience and capacity were to be considered, and when so considered, the fact stands out that her contributory negligence is not made out by undisputed evidence. This is emphasized by the further fact of the discrepancy in the testimony of the witnesses, both children and adults, as to the passing and speed of the cars, the part of the car that first came in contact with plaintiff and numerous other important items of evidence. On the whole, the case was one of sharp dispute upon the question of plaintiff’s conduct and the negligence of appellant. The question of appellee’s contributory negligence was as clearly one for the jury, as that of the appellant’s negligence.
In view of the positive evidence that appellee looked when but a short distance from the tracks, and of the necessary confusion caused by the two cars and the other circumstances of the case, we think the question of contributory negligence clearly within the rule that it is an ultimate fact to be determined by the jury from all the evidence, including her age, capacity and experience, and that it cannot be declared as a matter of law without doing violence to legal principles and judicial precedent.
While my difference in view is not so much one of law as it is the application of the law to the facts of this case, nevertheless, as supporting the conclusion already announced we cite the following additional authorities: Citizens St. R. Co. v. Hamer (1902), 29 Ind. App. 426, 435, 62 N. E. 658, 63 N. E. 778; Shirk v. Wabash R. Co. (1895), 14 Ind. App. 126, 131, 42 N. E. 656; New York, etc., R. Co. v. Mushrush (1894), 11 Ind. App. 192, 37 N. E. 954, 38 N. E. 871; Terre Haute St. R. Co. v. Tappenbeck (1893), 9 Ind. App. 422, 36 N. E. 915; Cleveland, etc., R. Co. v. Miles (1903), 162 Ind. 646, 654, 70 N. E. 975; Indianapolis Southern B. Co. v. Emmerson (1912), 52 Ind. App. 403, 98 N. E. 895. While the proposition is fully supported in Indiana, the trend of *599authority in other states is in harmony with the foregoing conclusion. Haycroft v. Lake Shore, etc., R. Co. (1876), 64 N. Y. 636; Gass v. Missouri Pac. R. Co. (1894), 57 Mo. App. 574, 580; Atchison, etc., R. Co. v. Hardy (1899), 94 Fed. 294, 37 C. C. A. 359; Cook v. Houston, etc., Nav. Co. (1890), 76 Tex. 353, 358, 13 S. W. 475, 18 Am. St. 52; Howland v. Union St. R. Co. (1889), 150 Mass. 86, 22 N. E. 434, 150 Mass. 86; Wynn v. City, etc., R. Co. (1893), 91 Ga. 344, 359, 17 S. E. 649; Consolidated City, etc., R. Co. v. Carlson (1897), 58 Kan. 62, 48 Pac. 635; Steele v. Northern Pac. R. Co. (1899), 21 Wash. 287, 57 Pac. 820; Costello v. Third Ave. R. Co. (1900), 161 N. Y. 317, 55 N. E. 897; 2 Thompson, Negligence §§1427-1430 and cases cited; Consolidated Traction Co. v. Scott (1896), 58 N. J. L. 682, 34 Atl. 1094, 33 L. R. A. 122, 55 Am. St. 620, Van Natta v. Peoples St. R., etc., Co. (1895), 133 Mo. 13, 22, 34 S. W. 505; Pittsburgh, etc., R. Co. v. Moore (1903), 110 Ill. App. 304; Illinois Central R. Co. v. Slater (1889), 129 Ill. 91, 21 N. E. 575, 6 L. R. A. 418,16 Am. St. 242; 4 Am. and Eng. Ency. Law 46.
Upon further consideration I am also unable to give my approval to one proposition of the opinion relating to the doctrine of last clear chance. In cases where a motorman and a person upon a street car track are both negligent, and their negligence continues up to the time of the accident, the opinion holds there can be no liability unless the motorman actually sees such person and knows of his peril in time to avoid injuring him. I believe the law is that the operating company in such eases is guilty of actionable negligence and may be held liable, where by the use of ordinary care the motorman could have known of the injured person’s peril in time to have avoided the injury, as well as in cases where he actually sees such person and knows of his peril. The law is firmly established in this State that a person who owes a duty to another, or to the public generally, is charged not only with actual knowledge, but with the knowledge he may acquire by the exercise of ordinary care. Furthermore, the *600doctrine of last clear chance is “regarded as an exception to the general rule, forbidding recovery by a plaintiff guilty of contributory negligence.” Indianapolis Traction, etc., Co. v. Kidd (1906), 167 Ind. 402, 411, 79 N. E. 347, 7 L. R. A. (N. S.) 143, 10 Ann. Cas. 942. The conclusion reached in the opinion seems to be the logical result of the reasoning followed, but strict logic does not always best serve the ends of justice. Exceptions to general rules of law are numerous, and are recognized as an essential and necessary part of our jurisprudence. I see no reason why we should not recognize •the exception already declared by our Supreme Court and apply it to this proposition. Many cases might be cited bearing to some extent upon the question, among which I cite the following: Shilling v. Indianapolis, etc., Traction Co. (1912), 51 Ind. App. 131, 96 N. E. 167, 97 N. E. 124; Glass v. Fort Wayne, etc., Traction Co. (1908), 42 Ind. App. 395, 402, 81 N. E. 514; Indianapolis St. R. Co. v. Schmidt (1904), 35 Ind. App. 202, 71 N. E. 663, 72 N. E. 478; Indianapolis St. R. Co. v. Bolin (1906), 39 Ind. App. 169, 182, 78 N. E. 210; Indianapolis St. R. Co. v. Seerley (1904), 35 Ind. App. 467, 472, 72 N. E. 169, 1034.
For the foregoing reasons I believe the petition for a rehearing should be granted. Myers, J., concurs.