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Am. St. Rep. 305, and authorities cited. 3, defendant's objection that reason for taking
McQuillin, Municipal Corporations, 88 1408, them was not shown to still exist.
1409; Oler v. Pittsburgh, etc., R. Co., supra; Cent. Dig. 88 246, 247, 256, 257; Dec. Dig.

[Ed. Note.-For other cases, see Depositions, 2 Elliott, Roads & Streets (3d Ed.) § 1180.

Om 89.] [8] By legislative grant the board had ju

5. DEPOSITIONS 83(4)-MOTION TO SUPrisdiction over the subject-matter-vacation

PRESS-TIME OF MAKING, of streets and the statutory notice to ap A motion to suppress depositions must be pellant, which is not denied, gave it jurisdic- made before the cause is submitted to the jury. tion of the person to hear and determine the

[Ed. Note. For other cases, see Depositions, damages and to assess benefits. In assessing Cent. Dig. 88 222–226; Dec. 'Dig. 83(4).) benefits or in awarding damages the acts of 6. New TRIAL Om 104(1)-NEWLY DISCOVEB

ED EVIDENCE-CUMULATIVE. the board are essentially judicial, and from

A motion for new trial on the ground of a final order or judgment in that respect an newly discovered evidence was properly overappeal is authorized. Acts 1905, p. 284, 8 ruled, where the evidence would be merely cumu101; MacGinnitie v. Silvers, 167 Ind. 321, lative and pot likely to change the result at

another trial. 78 N. E. 1013; Shank y. Smith, 157 Ind. 401, 412, 61 N. E. 932, 55 L. R. A. 564; Brownell Cent. Dig. 88 218, 228; Dec. Dig. Cw104(1).]

[Ed. Note.-For other cases, see New Trial, Improvement Co. v. Nixon, 48 Ind. App. 195, 7. WITNESSES em 219(4)—PRIVILEGED Cox. 92 N. E. 693, 95 N. E. 585; 2 Elliott, Roads

MUNICATION-TO PHYSCIANS—WAIVER. & Streets (3d Ed.) 8 1179.

The statutory privilege to a patient or his (9, 10] There is no insistence that the legal representatives relating to communications board acted other than as directed by the made to physicians may be waived, and, when

once waived, it cannot be recalled. statute, which is broad enough to include the

[Ed. Note. For other cases, see Witnesses, alleged injuries of appellant. He was not Cent, Dig. $$ 759, 760; Dec. Dig. Om 219(1).] awarded damages, and this action can be ac- 8. APPEAL AND ERROR Oma 1050(1)–HARMLESS counted for on the theory that in the judg ERROR PRIVILEGED COMMUNICATIONS ment of the board he sustained no special CLINICAL RECORD. injury different in kind from that of the pub- of testator in a will contest might be objection

While the introduction of a clinical record lic generally. He was not compelled to ac- able as a privileged communication, the error, cept the judgment of the board, for, had be if any, in admitting it was rendered harmless remonstrated, the statute gave him 20 days by the appellant asking his own witness to in which to appeal to the circuit or superior testify as to the clinical record. court of the county. His remedy in this re

[Ed. Note.-For other cases, see Appeal and spect was by appeal, and not by an independ- Dec. Dig. Om 1050(1).]

Error, Cent. Dig. $$ 1068, 1069, 4153, 4157; ent action.

9. TRIAL 63(2)-ADMISSIBILITY OF Evi. Judgment affirmed.

DENCE IN REBUTTAL,

It is within the discretion of the trial court (186 Ind. 221)

to admit or exclude in rebuttal, evidence which STALKER v. BREEZE (No. 22894.) *

should have been given in chief.

[Ed. Note.-For other cases, see Trial, Cent. (Supreme Court of Indiana. Jan. 30, 1917.) Dig. $ 152; Dec. Dig. Ow63(2).] 1. WILLS 324(2) — TESTAMENTARY CAPAC- 10. TRIAL 63(2)-EVIDENCE IN REBUTTALITY-SUFFICIENCY OF EVIDENCE.

ABUSE OF DISCRETION. Evidence offered in a will contest held suffi

Under the evidence offered in a will contest, cient to submit to the jury the issue of testator's held that the court did not abuse its discretiontestamentary capacity.

ary power in admitting evidence on rebuttal. (Ed. Note.-For other cases, see Wills, Cent.

(Ed. Note.--For other cases, see Trial, Cent Dig. $ 768; Dec. Dig. Om 324(2).]

Dig. $ 152; Dec. Dig. Om 63(2).]
2. APPEAL AND ERROR Ow1001(1)-REVIEW-11. Trial em 62(2)-EVIDENCE IN REBUTTAL-
VERDICT.
Where the evidence in a will contest was

RES GESTE.
sufficient to form an issue of fact as to testa. witness as to a conversation regarding testa-

Testimony in a will contest, impeaching a mentary capacity and the jury found against tor's sanity at time will was executed, was a the validity of the will, the evidence will not be part of the res gestæ, and, where proper if inreviewed on appeal.

troduced in chief, was not improper on rebuttal. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. $8 3928, 3933; Dec. Dig. Om Dig. $ 149; Dec. Dig. Ow62(2).)

[Ed. Note.-For other cases, see Trial, Cent. 1001(1).] 3. TRIAL 260(1)–REFUSAL OF INSTRUC Appeal from Superior Court, Elkhart TIONS COVERED BY WHOLE CHARGE.

County; James L. Harman, Judge. Where the instructions given in a will contest included every phase of the case and all w. Stalker. Judgment for plaintiff, and de

Action by Mary Ann Breeze against John matters treated in appellant's requests, it was not error to refuse such requests.

fendant appeals. Affirmed. TEd. Note.--For other cases, see Trial, Cent.

C. C. Raymer, of Elkhart, for appellant. Dig. $ 651; Dec. Dig. Om 260(1).] 4. DEPOSITIONS SI ADMISSION IN Evi- Conley, Frank & Conley and William B.

Hile, all of Elkhart, for appellee. DENCE.

Where it was not claimed that the depositions were improperly taken or that the wit

ERWIN, J. This was an action by appelnesses were produced in court, the depositions showing that all were nonresidents, there was lee to contest the validity of the will of her 00 error in submitting them in evidence, over brother, John W. Stalker, an elderly bacheFor other cases see same topic and KEY-NUMBER 10 all Key-Numbered Digests and Indexes

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lor, and to set aside the probate thereof for, not so made, and came too late. Cohen v. the reason that decedent was of unsound Richman, 55 Ind. App. 164, 167, 102 N. E. mind, and that the will was unduly executed. 284. The will in question was executed on Decem [6] It is contended that the court erred in ber 15, 1913, just a few hours prior to tes- overruling the motion for new trial because

An tator's death. The will gave the entire prop- of certain newly discovered evidence. erty of testator to his nephew and namesake, examination of the affidavits in support of John W. Stalker, of Stagg, Cal. Appellee the motion, which set out the newly discovwas a beneficiary under a prior will dated ered evidence, shows that the evidence would August 25, 1888. Trial was had by jury, be cumulative and impeaching only, and of a resulting in a verdict and judgment in favor character not likely to change the result at of appellee, declaring the will invalid and another trial. The rule is: setting aside the probate thereof.

"That newly discovered evidence of a merely Appellant filed his motion for new trial cumulative character, or which tends only to

the impeachment of a witness, without renderassigning 157 causes therefor. This motion ing a different result from that already reacbwas overruled, and the only error assigneded probable, affords no sufficient ground for a calls in question that ruling of the court. new trial.”

[1, 2] Appellant contends that the verdict We are therefore of the opinion that the of the jury is not sustained by sufficient evi- court did not commit error in its ruling updence. Without setting out the evidence on this cause for new trial. Sutherlin v. herein, which is voluminous, it is sufficient State, 108 Ind. 389, 391, 9 N. E. 298; Wilto say that, in our opinion, there was at liams v. State, 170 Ind. 630, 632, 85 N. E. least sufficient evidence introduced in the 113; Ludwig v. State, 170 Ind. 648, 654, 85 case to form an issue of fact as to testator's N. E. 345; Ray v. Baker, 165 Ind. 74, 88, 74 testamentary capacity, and, that issue hav. N. E. 619; City of Hammond v. Jahnke, 178 ing been submitted to the jury, which found Ind. 191, 99 N. E. 39; Thain v. State, 182 against the validity of the will, this court Ind. 345, 349, 106 N. E. 690. could not, if it so desired, invade the prov It is contended that it was error to perince of the jury and weigh the evidence. mit the reading in evidence of the decedBoland v. Claudel, 181 Ind. 295, 298, 104 N. ent's clinical record, kept by the nurses of E. 577; Public Utilities Co. v. Handorf, 112 the hospital for the hospital, for the reason N. E. 775.

that it was privileged, was incompetent, and [3] It is contended by appellant that the trial hearsay evidence. The record herein shows court erred in refusing to give his tendered that appellant called as a witness one of the instructions numbered 1 to 22. These tender- nurses who made a portion of the clinical ed instructions were, in all particulars in record and examined her in relation to cerwhich they were applicable to the evidence tain things which she found upon the same. and issues of this case, included in the instruc (7] It has been held by this court that the tion given by the court. The court's instruc-privilege given by statute to a patient or his tions covered fully every phase of the case, legal representatives in relation to commuincluding what did and what did not consti- nications made to the patient's physician tute unsoundness of mind; what constituted may be waived, and, when once waived, it a proper execution of the will, as to signing cannot be recalled, and the information is and witnessing; the burden of proof and no longer privileged. Pittsburgh, etc., R. Co. facts necessary to be proven to set aside the v. O'Connor, 171 Ind. 686, 85 N. E. 969. will, with every phase of the law, covering [8] We are of the opinion that, although the facts and controversy in the case. We the clinical record itself may be incompetent find no reversible error in the refusal to as a privileged communication (Smart v. give instructions tendered or in the instruc- Kansas City, 208 Mo. 162, 105 S. W. 709, 14 tions given by the court. Boland v. Claudel, L. R. A. [N. S.) 565, 578, 123 Am. St. Rep. 181 Ind. 295, 104 N. E. 577.

415, 13 Ann. Cas. 932), the error, if any, in [4] Appellant contends that the court err- permitting the clinical record to be read in ed in permitting certain depositions to be evidence was rendered harmless by appelread in evidence over his objections, madelant's asking his own witness, one of the at the time appellee offered to read them, nurses, to testify as to part of the contents that, the reason for taking the depositions of the same record. is not shown to still exist. The depositions [9, 10) The next contention is based upon show that the witnesses were all nonresi- the introduction of certain evidence in redents of the state. It is not contended that buttal which was a part of appellee's main the deposition was improperly taken, nor

It is within the discretion of the trial that the witness was “produced in court”; court to admit or exclude in rebuttal evitherefore the court did not commit error. dence which should have been given in chief. Louisville, etc., R. Co. 7. Hubbard, 116 Ind. We have carefully read the evidence given, 193, 194, 18 N. E. 611.

and cannot say that the court has here abus(5] A motion to suppress a deposition ed its discretionary power. should be made before the case is submitted It is contended by appellant that the court to the jury for trial. The motion here was erred in overruling their objections to certain

case.

ING

questions propounded to the witnesses Ma- , sonable minds cannot honestly differ as to loney and Friedman, nurses who were pres- whether he exercised reasonable care. ent when the will was executed and which Cent. Dig. § 1166; Dec. Dig. 350(13).]

[Ed. Note.-For other cases, see Railroads, testimony was offered in rebuttal. The objection to this testimony was that it should 3. RAILROADS 327(8)—ACCIDENTS AT CROSShave been offered in their examination in

ING-CONTRIBUTORY NEGLIGENCE-ACTS RE

QUIRED chief as witnesses for plaintiff, was not prop While ordinary care in approaching a railer rebuttal, and was an attempt to impeach road crossing requires as a inatter of law the the witness Fleming on an immaterial mat-traveler to use his senses of sight and hearing.

it does not require him to stop or look or listen ter.

at any particular place, except that he must do [11] The witness Fleming was a witness so at some place where such precautions would for the defense, and testified that he had enable him to learn of the approach of a train. written the will in question, and gave it as

(Ed. Note.-For other cases, see Railroads, his opinion that the testator was of sound Cent. Dig. § 1051; Dec. Dig. 327(8).] mind. On cross-examination this witness 4. RAILROADS E324(1),ACCIDENTS AT CBOSSwas asked if he had not had a conversation

CONTRIBUTORY NEGLIGENCE — DRIVER

OF AUTOMOBILE. with the nurse, Maloney, at the time he was Though the jury may properly consider the writing the will, and if he had not made cer- more complete control over an automobile, and tain statements in relation to the sanity of the freedom from danger of fright, as compared decedent which were denied, but stated that whether the driver used due care in approach

a horse-drawn vehicle, in determining certain statements were made by the nurse ing a railroad crossing, the legal duty of an au. to him at the time. In rebuttal these two tomobile driver does not differ from that of the witnesses were called to give their version driver of a horse-drawn vehicle. of the conversation, which they did by stat- Cent, Dig. $f 1020, 1022, 1023; Dec. Dig.

(Ed. Note.-For other cases, see Railroads, ing that the witness Fleming had made cer- 324(1).] tain statements at that time. This testi

5. RAILROADS 352-ACCIDENTS AT CROSSmony was confined to the conversation bad

ING-SPECIAL VERDICT-CONTRIBUTORY NEGat the time the will was being prepared and LIGENCE. was part of the res gestæ, and would have In an action for injuries to an automobile been proper is introduced in chief, and was

driver, who was struck at a railroad crossing by not improper rebuttal. The fact that the had gone by, answers by the jury to special in.

cars shunted by a flying switch after the engine testimony contradicted the testimony of the terrogatories held not to show any acts or omiswitness Fleming did not make it objection- sions by the driver which rendered him contribuable. The question of the sanity of the tes- torily negligent as a matter of law, and there

fore to require a judgment for defendant nottator at the time the will was made was withstanding a general verdict for plaintiff. one of the material matters in issue, and all

(Ed. Note. For other cases, see Railroads, that was done and said by testator or the Cent. Dig. $ 1216; Dec. Dig. 352.] parties present was a part of the transac- 6. RAILROADS Om 304, 351(5)-ACCIDENTS AT tion, and therefore competent.

CROSSING NEGLIGENCE VIOLATION OF Appellant assigns 70 additional causes for

STATUTE. new trial, based upon the introduction and it a misdemeanor to permit a railroad car to re

Under Burns' Ann. St. 1914, § 2671, making exclusion of certain evidence. We have ex- main across a public street, it is negligence per amined these, and are of the opinion that se to leave a car standing partly across the they present no reversible error.

street, and the jury may be so instructed in an There being no reversible error, the judg- bile at the crossing.

action for injuries to the driver of an automoment is affirmed.

[Ed. Note.-For other cases, see Railroads,

Cent. Dig. $8 964, 1198; Dec. Dig. On 304, (186 Ind. 262)

351(5).] CENTRAL INDIANA RY CO. v. WISHARD.*

7. RAILROADS 351(13) ACCIDENTS AT (No. 22762.)

CROSSING-REQUESTED INSTRUCTIONS-CON(Supreme Court of Indiana. Jan. 30, 1917.)

TRIBUTORY NEGLIGENCE VIOLATION

STATUTE. 1. RAILROADS Om324(1)-ACCIDENTS AT CROSS In an action for injuries to an automobile

ING-CONTRIBUTORY NEGLIGENCE-DEGREE driver at a railroad crossing, a requested in. OF CARE.

struction that, if plaintiff was operating his auThe law imposes on travelers on a highway tomobile in violation of any of the provisions of approaching a railway crossing the duty to use Burns' Ann. St. 1914, $10465, 10476, he could reasonable care.

not recover, without requiring a finding that the (Ed. Note.-For other cases, see Railroads, violation contributed to the injury, was properly Cent. Dig. 88 1020, 1022, 1023; Dec. Dig. Om refused. 324(1).]

(Ed. Note.- For other cases, see Railroads, 2. RAILROADS 350(13) ACCIDENTS AT Cent. Dig. § 1205; Dec. Dig. Om351(13).]

CROSSING-QUESTION FOR COURT-CONTRIB-
UTORY NEGLIGENCE.

8. TRIAL 260(1) REQUESTED INSTRUCThe question whether a traveler approaching

TIONS-REPETITION OF GIVEN INSTRUCTION. a railway crossing has performed the duty im

There is no error in refusing a requested inposed upon him as a matter of law, by exercising struction, though it correctly states the law, if it the ordinary care required by the circumstances, was sufficiently covered by instructions given. is a question of fact, unless the acts done or [Ed. Note. For other cases, see Trial, Cent omitted by him are of such a nature that rea-l Dig. $ 651; Dec. Dig. Cm260(1).] For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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9. RAILROADS 345(3)—ACCIDENTS AT CROSS-, collision of appellant's cars with appellee's

ING-ISSUES-CONTRIBUTORY NEGLIGENCE, automobile when he was crossing appellant's VIOLATION OF ORDINANCE.

In an action for injuries to an automobile tracks at a street crossing in the city of driver at a railway crossing, defendant can un

Noblesville. The record shows that the der a general denial, introduce evidence of a city tracks of appellant in the city of Noblesordinance and its violation by plaintiff, to show ville run east and west along and within the contributory negligence.

limits of Vine street, and that Sixth street (Ed. Note.-For other cases, see Railroads, Cent. Dig. | 1115; Dec. Dig. Om 345(3).)

in said city runs north and south, and cross

es Vine street and appellant's tracks prac10. APPEAL AND ERROR Om 854(1)-REVIEWINCORRECT REASON FOR CORRECT DECISION. tically at right angles. In addition to its

A ruling of the trial court will be upheld on main track appellant maintained two switch appeal, if it was correct for any reason, since tracks, one north and the other south of the every presumption is indulged in favor of such main track, and also a spur track north of ruling.

[Ed. Note.-For other cases, see Appeal and the main track, all of which crossed Sixth Error, Cent. Dig. 8 3406; Dec. Dig. em 854(1).] street. There were a coal shed and other ob11. EVIDENCE w330_ORDINANCES-VALIDI

structions near the crossing, and, at the time TY-PUBLICATION-STATUTE.

of the injury to appellant, a freight car 81/2 Under a statute (Burns' Ann. $t. 1901, 8 feet in height was standing on the north 3535) providing that every by-law, imposing a side track, the west end of which extendpenalty for violation thereof shall, before it ed into Sixth street a distance of 842 feet. takes effect, be published two weeks consecutively in some newspaper, an ordinance providing Appellee was driving his car south on Sixth that it should take effect after its publication street, and was attempting to cross the for two weeks in a newspaper, the first publica- tracks on Vine street, when his automobile tion being "on the

day

and the

was struck by a cut of cars which were apsecond on the day of said month," does pot furnish presumptive evidence that 'it was proaching from the east. The negligence in effect.

charged against appellant by the complaint [Ed. Note.-For other cases, see Evidence, is that it negligently left said freight car Cent. Dig. § 1234; Dec. Dig. 330.) standing on its side track in the street; that 12. EVIDENCE 330 - ORDINANCES Evi- it negligently and carelessly, and without DENCE-PRESUMPTIONS-STATUTE. In Burns' Ann. St. 1914, § 8654, prescribing from the east over its main track, without

notifying appellee, ran a cut of freight cars the manner in which ordinances shall be passed, providing that they shall not become operative any bell or whistle attached thereto, against until signed by the presiding officer of the coun- appellee's automobile; that it negligently cil and approved by the mayor, or passed over kicked or shunted, or by means of what is his veto, that they

shall be recorded by the city known as a flying switch "ran, said freight clerk, and that such record shall be presumptive evidence of the passage and taking effect of such cars toward the west and across said crossordinance, the provision for presumptive evi-ing, without any engine attached thereto, dence does not apply to a penal ordinance, the and without any watchman on the west end record of which fails to show its publication as of said cut of cars, and without any watchrequired by statute. (Ed. Note.-For other cases, see Evidence,

man at said street crossing.” The errors Cent, Dig. § 1234; Dec. Dig. Om 330.]

assigned, and not waived, are the overruling 13. EVIDENCE O -330 ORDINANCE — ADMIS

of appellant's motion for a new trial and SION IN EVIDENCE-OBJECTION.

the overruling of its motion for judgment A penal municipal ordinance, not shown to on the interrogatories notwithstanding the have been published as required by statute, was general verdict. properly excluded from evidence on objection, though, if it had been admitted without objec

Appellant asserts that the answers to intion, it would be presumed that it had been terrogatories show affirmatively that appelproperly published.

lee was guilty of contributory negligence. As (Ed. Note.-For other cases, see Evidence, bearing on this question, such answers show Cent. Dig. g 1234; Dec. Dig. Om330.]

that appellant was acquainted with Sixth Appeal from Circuit Court, Tipton Coun- street crossing over appellant's tracks; that ty; Leroy B. Nash, Judge.

before he turned into Sixth street he had Action by Ernest E. Wishard against the seen the engine and cars at Eighth street, Central Indiana Railway Company. Judg. which is about 400 feet east of Sixth street; ment for plaintiff, and defendant appealed that he approached the crossing with his to the Appellate Court, from which the case engine in high gear, but at low speed, and was transferred to the Supreme Court (108 stopped it on the east side of Sixth street N. E. 35). Judgment affirmed.

at a point 30 feet north of the main track ;

that Sixth street is 50 feet wide, and that U. C. Stover, of Indianapolis, and Dan there was nothing to prevent him from stopWaugh, of Tipton, for appellant. Wymond ping his car on the west side of the street ; J. Beckett and Wm. F. Elliott, both of In- that a fence and a shed 10 feet high along dianapolis, for appellee.

the east side of Sixth street extended to a

point within 7 feet of the side track, and that LAIRY, C. J. Appellee recovered a judg- appellant knew of said fence and shed; that ment against appellant for damages on ac- there was a coal car 8 or 9 feet high standcount of injuries to his person, caused by a sing on the side track at the east side of Sixtb

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

street, with its west end extending 8 or 9 feet, that are specifically required or forbidden by into Sixth street and that the center of the side a law or ordinance. As to those acts, the track was 13 feet north of the center of the doing of those so forbidden, or the omis. main track; that appellee heard the engine sion to do those so required, is negligence and cars coming toward Sixth street from the per se. With this latter question we are not east, and while his automobile was stopped now concerned, and it is mentioned only the engine and one car passed over Sixth that the distinction may be preserved bestreet; that the seat on appellee's automobile tween negligence as a matter of law and was 4 or 5 feet back of the front end of the negligence as a question of fact. car, and when seated therein his eyes were [3] The courts of this state have been very about 542 feet above the ground; that, with cautious in stating that any special acts or little inconvenience appellee could have precautions were required in the exercise of alighted from his automobile and gone for- ordinary care, generally leaving that quesward and ascertained whether other cars tion to the jury. This court has declared as were following the engine and car which had a matter of law that ordinary care requires passed; that he did not rise up or change a person about to cross a railroad track to his posture, so as to obtain a better view of use his senses of sight and hearing, but it the tracks in either direction, before driving has never said that he must stop or that he upon the tracks; that he did not stop the must look or listen at any particular place, motor while his car was standing, and that except that he should look or listen at some it made a noise while running; that after place where such precautions would enable the engine and car had passed the crossing him to see or hear the approach of a train. appellee put his car in motion, but not im- Pittsburgh, C., C. & St. L. Ry. Co. v. Dove mediately, and was proceeding at about 4 (1916) 111 N. E. 609, and cases there cited. miles per hour when he started to cross the Appellant asks us to go further in this case, main track between the car attached to the and to declare as a matter of law that othengine which had passed and the cut of cars er specific precautions on the part of appelfollowing; and that he did not see the cut lee were necessary in the exercise of ordi. of cars which struck his automobile until nary care, as, for instance, to stop his motor, they were within 3 or 4 feet of his car. The or to stand up and look, or to get out and foregoing facts, taken from the answers to go forward and look, up and down the track. interrogatories, are those most favorable to It is possible that the judge who presided appellant's contention, and are the ones up- at the trial may have thought that ordinary on which he relies as showing contributory care, under the circumstances shown, renegligence.

quired the use of some or all of such precau[1, 2] It is claimed that these answers show tions, or that some of the members of this that appellee did some things which ordinary court may think so; but these are not quescare required him not to do under the cir- tions of law for the decision of courts. It cumstances, and that he neglected to do has been thought wise to submit such quessome things which ordinary care required of tion to the 12 laymen composing the jury, him. The law imposes a duty on travelers to be decided as questions of fact under on a highway approaching a railway cross- proper instructions from the court, in order ing to use reasonable care. This duty arises that they may bring to bear their varied exout of the relation of parties, and is declared periences and knowledge of men, in deterto exist as a matter of law; but, when the mining what a reasonably prudent man question arises as to what acts or conduct or would ordinarily do under the circumstances dinary care requires under the circumstances disclosed by the evidence. This court canof a particular case, this must generally be not say that there is no room for reasonable determined as a question of fact. The court minds to differ on any of these questions, cannot say as a matter of law that ordinary and therefore cannot hold as a matter of care requires a designated act to be done, or law that any precaution under consideration that it required a specific act to be omitted, should or should not have been observed in unless the act in question was of such a the exercise of due care. character as to be wholly incompatible with [4] Appellant asserts that a distinction the exercise of reasonable care when consid- should be drawn between automobiles and ered in the light of attending circumstances. vehicles drawn by horses in respect to the It must be so absolutely inconsistent with conduct of the driver in approaching a rail. the exercise of ordinary care that there way crossing. It is suggested that the speed could be no room for reasonable minds to of an automobile is under the complete condiffer on the question. So long as there is trol of a driver, and that, when moving at room for an honest difference between rea- slow speed, it can be brought to a quick sonable minds as to whether or not the do- stop within a few feet of the tracks, if necing (or the omission to do, as the case might essary to avoid danger, without exposing the be) of the particular act was consistent with occupant to the danger incident to the fright the care that a man of ordinary prudence of horses, which would be likely if the vehi. would use under the circumstances, the ques-cle were drawn by horses. There can be no tion is one of fact for the jury. What has doubt that it is possible for the driver of an

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