*256On Motion For Rehearing.
VALLIANT, J".The motion, for rehearing proceeds upon a misconception by the learned counsel of the opinion delivered. There is nothing in that opinion to indicate “that notwithstanding the deceased saw or might have seen, the train within a few feet of her when she went upon the track, she had the right to presume that she could cross in safety, and when the engine was almost on her she had the right still to indulge the presumption that she could do so and stoop to recover a scarf she had dropped.” Nor does the opinion hold “that the prior and concurring negligence of the company in running its train at a prohibited rate of speed relieves deceased’s representatives from the consequences of that act,” nor “that the evidence of her negligence ought to be disregarded for the reason that she could not be negligent because she had a right to assume that the persons in charge of the train would observe the ordinance limiting its speed to six miles an hour.”
The opinion says: “That act [running the train in violation of the ordinance] was negligence per se and if it was the cause of the accident, the defendant was liable unless the deceased contributed to the result by her own negligence.” It holds that in considering the question of her negligence the ordinance was a fact to be taken into account, and that that raised a question of fact. But there is no intimation in the opinion that that presumption, that she relied on the ordinance, is to be taken as conclusive. The language of the opinion is: “The city ordinance prohibited the train running at a higher rate than six miles an hour, and in the absence of proof that she knew or had reason to apprehend to the contrary the law will presume that she trusted, as she had a right to trust, that the defendant was running its train at not more than six miles an hour in obedience to the ordinance, and that she regulated *257her movements accordingly.” That leaves the defendant entirely free to show if it is a fact, that the circumstances and conditions were such as that, notwithstanding the ordinance, she had reason to apprehend that the train was running at a higher rate than that prescribed. This defendant has met that issue frequently and knows how to handle it.
Nor is there anything in the record to justify the assumption that Mrs. Hutchinson stopped within fifty or eighty feet of the engine to pick up her scarf. The facts clearly shown are that she was sitting in the station at night, waiting for a train; she heard a whistle, and said, “That is our train, we must be in a hurry.” She went out on the platform and saw the headlight of the approaching train which was then at Ellendale and clearly visible, although it was half a mile away, it was a dark night, and whether she could in fact see how fast the train was coming was a question. But the opinion says, if there was nothing in the case to justify her in thinking that the train was running at a slow rate, she was chargeable with knowledge that the train might lawfully run by the station at forty miles or more an hour and if she ventured upon the track she did so at her peril. But the fact of the ordinance was a fact that might enter into her calculation, unless she had reason to apprehend the train was running in violation of the ordinance, and that that made a question for the jury. If tire train was running in submission to the ordinance, it would have taken it just five minutes to have covered the distance from Ellendale to the point of the accident, but at forty miles an hour the distance was made in less than one minute. The motion for rehearing is overruled.
Burgess, G. J., and Brace and Gantt, JJ., who concurred in the original opinion, concur in the above.