Mitchell, J.
This action was brought by John W. Gaines-against the Cincinnati, Indianapolis, St. Louis and Chicago Eailway Company, and another railway company, whose line the appellant was operating, to recover for injuries alleged to have been sustained by the plaintiff in consequence of the careless and negligent running of a train by the appellant, and in failing to observe the statutory obligation imposed on those operating locomotive engines on railways, in respect of the approach to highway crossings.
The complaint is in two paragraphs. The first seeks & recovery. for an injury upon the common law liability for negligence ; while the second is grounded upon the right to recover for an injury occasioned by a failure to observe a statutory duty.
The wrong of which complaint is made in the first paragraph is, that while the plaintiff, with his team and wagon, was lawfully proceeding along a public highway or street, [528] where it approaches and is crossed by the defendant’s railway, the defendant carelessly and negligently caused a locomotive engine, with a train of cars attached, to approach and pass over the crossing, and that, by reason thereof, the plaintiff’s team, without fault on his part, or that of his servant who was driving, took fright,, became unmanageable, and ran away with the wagon, from which he was thrown with such violence that he sustained grievous injury to his person.
In the second paragraph it is charged that the plaintiff was proceeding along the highway in the manner stated, when the defendant caused a locomotive engine, with a train of cars attached, to approach the street crossing without sounding the whistle and ringing the bell, according to the statute in such cases made and provided, by reason whereof both plaintiff, and his servant who was driving, were unaware of. the approach of the train; that the team took fright, became unmanageable, etc., and the plaintiff was, without fault, injured as stated.
It is contended that neither paragraph states a cause of action, and that the court committed error in overruling demurrers filed to each.
The only infirmity which is claimed, as pertaining to the first paragraph, is, that it fails to specify in what the defendant’s carelessness and negligence consisted.
While the statements in the paragraph under consideration are, as was said in City of Evansville v. Worthington, 97 Ind. 282, too general to commend it as a model of good pleading, it is nevertheless settled that objection for that cause can only be taken by a motion to make more specific; it is not ground for demurrer. Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261 (38 Am. R. 134); Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160.
Concerning the second paragraph it is sufficient to say that while we concede the proposition, as contended for by counsel, that a statute which requires certain signals to be given as a train approaches a highway crossing, and which makes a [529] railway company liable for all damages occasioned by a failure to give such signals, has no application to a case where the person injured was guilty of contributory negligence, we are nevertheless of the opinion that the averments of this paragraph are such as to rebut any presumption of contributory fault. Moreover, we think the contention of the appellee that the special findings affirmatively show that the conclusions of law and judgment of the court rest on the first paragraph of the complaint is well made. In that view of the •case a reversal would not follow, even if it should have been held that the second paragraph was insufficient. Martin v. Cauble, 72 Ind. 67; Smith v. McKean, 99 Ind. 101.
Upon request the court found the facts specially, and stated its conclusions of law thereon. The manner in which the track crosses the highway, fhe cautionary signs provided, the •speed at which trains usually run in crossing, and the situation and conformation of the grounds surrounding the crossing and approaches to it, are exhibited in detail in the findings.
It was found that the crossing was one that was much •used by the passing teams and vehicles, was of extraordinary •danger, that accidents had frequently happened there before within the defendant’s knowledge, and that the usual statutory signals were not always sufficient warning to notify the public using the highway of the approach of trains. The railway track crossed the highway by an overhead bridge, fifteen feet above the highway, the passage way for teams underneath being a space about twelve feet in width.
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Mitchell, J.
This action was brought by John W. Gaines-against the Cincinnati, Indianapolis, St. Louis and Chicago Eailway Company, and another railway company, whose line the appellant was operating, to recover for injuries alleged to have been sustained by the plaintiff in consequence of the careless and negligent running of a train by the appellant, and in failing to observe the statutory obligation imposed on those operating locomotive engines on railways, in respect of the approach to highway crossings.
The complaint is in two paragraphs. The first seeks & recovery. for an injury upon the common law liability for negligence ; while the second is grounded upon the right to recover for an injury occasioned by a failure to observe a statutory duty.
The wrong of which complaint is made in the first paragraph is, that while the plaintiff, with his team and wagon, was lawfully proceeding along a public highway or street, [528] where it approaches and is crossed by the defendant’s railway, the defendant carelessly and negligently caused a locomotive engine, with a train of cars attached, to approach and pass over the crossing, and that, by reason thereof, the plaintiff’s team, without fault on his part, or that of his servant who was driving, took fright,, became unmanageable, and ran away with the wagon, from which he was thrown with such violence that he sustained grievous injury to his person.
In the second paragraph it is charged that the plaintiff was proceeding along the highway in the manner stated, when the defendant caused a locomotive engine, with a train of cars attached, to approach the street crossing without sounding the whistle and ringing the bell, according to the statute in such cases made and provided, by reason whereof both plaintiff, and his servant who was driving, were unaware of. the approach of the train; that the team took fright, became unmanageable, etc., and the plaintiff was, without fault, injured as stated.
It is contended that neither paragraph states a cause of action, and that the court committed error in overruling demurrers filed to each.
The only infirmity which is claimed, as pertaining to the first paragraph, is, that it fails to specify in what the defendant’s carelessness and negligence consisted.
While the statements in the paragraph under consideration are, as was said in City of Evansville v. Worthington, 97 Ind. 282, too general to commend it as a model of good pleading, it is nevertheless settled that objection for that cause can only be taken by a motion to make more specific; it is not ground for demurrer. Ohio, etc., R. W. Co. v. Collarn, 73 Ind. 261 (38 Am. R. 134); Cleveland, etc., R. W. Co. v. Wynant, 100 Ind. 160.
Concerning the second paragraph it is sufficient to say that while we concede the proposition, as contended for by counsel, that a statute which requires certain signals to be given as a train approaches a highway crossing, and which makes a [529] railway company liable for all damages occasioned by a failure to give such signals, has no application to a case where the person injured was guilty of contributory negligence, we are nevertheless of the opinion that the averments of this paragraph are such as to rebut any presumption of contributory fault. Moreover, we think the contention of the appellee that the special findings affirmatively show that the conclusions of law and judgment of the court rest on the first paragraph of the complaint is well made. In that view of the •case a reversal would not follow, even if it should have been held that the second paragraph was insufficient. Martin v. Cauble, 72 Ind. 67; Smith v. McKean, 99 Ind. 101.
Upon request the court found the facts specially, and stated its conclusions of law thereon. The manner in which the track crosses the highway, fhe cautionary signs provided, the •speed at which trains usually run in crossing, and the situation and conformation of the grounds surrounding the crossing and approaches to it, are exhibited in detail in the findings.
It was found that the crossing was one that was much •used by the passing teams and vehicles, was of extraordinary •danger, that accidents had frequently happened there before within the defendant’s knowledge, and that the usual statutory signals were not always sufficient warning to notify the public using the highway of the approach of trains. The railway track crossed the highway by an overhead bridge, fifteen feet above the highway, the passage way for teams underneath being a space about twelve feet in width.
Trains approaching from the west were not visible to persons on the highway coming from the north, except at a point about one hundred and eighty feet distant from the crossing, and not then until such trains reached a point not farther than forty feet from the bridge. The “whistling post ” for trains approaching from the west was a fraction over thirteen hundred and thirty feet westerly from the •crossing. On the 20th day of October, 1882, the plaintiff, [530] with his two sons, was returning from the city of Lafayette to his home, seated in a farm wagon, which was drawn by a mule team driven by one of the sons. The team approached the crossing from the north-east upon a slow trot, the wagon making considerable noise, the plaintiff being at the time engaged in conversation with a neighbor who had been invited to a seat in the wagon. The wind was blowing moderately from the south-west, and the weather was clear and pleasant. It was about 4 o’clock p. m. It is found that under ordinary conditions the sound of the whistle on an engine could be heard from a point over a half mile west of the crossing, and the ringing of the bell, the roar and noise of the train coming over the track, could be heard a quarter of a mile distant. At a point from one hundred and eighty to one hundred and eighty-five feet# from the crossing the team was stopped for the space of a few seconds for the purpose of looking and listening for the train, the plaintiff knowing that it was about time for the arrival of the regular passenger train, which was three or four minutes late. The occupants of the wagon hearing no signal or other indication of an approaching engine and train, the driver, by direction of the plaintiff, whipped the team into a brisk trot and passed to the railroad crossing at the rate of about six miles an hour. This is found by the court to have been a proper rate of speed under the circumstances. While the plaintiff was thus occupied, an engine with a passenger train attached was coming from the west, over the defendant’s line, at the rate of about eighteen miles an hour. When the engine arrived at the whistling post the engineer gave one “long blast ” from the whistle, lasting five or six seconds, the fireman at the same time ringing the bell, which was rung continuously until the crossing was passed. The team and the engine reached the crossing about the same time, and while the wagon was under the bridge, and the engine passing above, the whistle on the engine was sounded, the persons in charge of the engine being unable to see teams when so near [531] as plaintiff was, and having no knowledge of the presence of the passing team below. It is found that the mules were frightened by the sound of the whistle, the noise and smoke of the train, and that this was the sole cause of their fright. They became unmanageable, ran away with the wagon, which was overturned and the plaintiff thrown upon the ground with such .violence as to sustain grievous and permanent injury in his person. The extent, nature and severity of the injury are described. Concluding its finding of facts, the substance of which is above set out, the court makes an inference of fact as follows:
“And it is further found as an inference of fact that said plaintiff received and suffered said injuries without any fault or negligence on his part or on the part of his son who was driving said team at the time said injuries were received, and that the defendant, the Cincinnati, Indianapolis, St. Louis and Chicago Railway Company, was guilty of negligence in running its said engine and train of cars over said crossing over said highway, and thereby negligently frightened the team of the plaintiff and thereby caused the said injuries to the plaintiff.”
The conclusion of law stated as to the appellee is as follows : “And I further find that the defendant, the Cincinnati, Indianapolis, St. Louis and Chicago Railway Company, is liable upon the facts hereinbefore found, and therefore I find for the plaintiff, and against said defendant, the Cincinnati, Indianapolis, St. Louis and Chicago Railway Company, and assess the plaintiff’s damages at eight thousand dollars.”
The appellant excepted to the conclusions of law, upon the facts found, and upon this exception is presented the first question for consideration: Do the facts found justify the inference that the railway company was guilty of negligence ? The case is in some respects different from that ordinarily presented in which the conduct of persons operating railway trains, and persons travelling over grade crossings on public highways are involved. Since the railway here concerned crossed [532] over the highway on its own bridge, so as to present no obstruction against the use of the highway, those operating trains over it were required to observe precisely the same care in doing so in respect of travellers on the highway at the crossing that was required at other’ places of equal danger. The single exception to this was, that the statute imposed upon those operating trains the duty of giving timely warning of the approach of engines by specified signals. The signals having been duly made, so that no negligence was predicated upon a failure to comply with its duty in that regard, the conduct of the appellant, as it is exhibited in the special ’ findings, must be considered in all respects the same as if the highway along which the plaintiff was proceeding had lain parallel with, and in such close proximity to, the railway as to have presented a situation of extraordinary danger. Whether it was negligent or not must depend upon the conduct of those operating its train, considered with reference to the danger incident to the situation, and the facts of which they had or were bound to take notice.
The only substantive act upon which negligence is predicated is, that when the locomotive entered upon the bridge the whistle was sounded. It is not found that the sounding of the whistle was unnecessary or in any respect improper, and we must, therefore, presume there was lawful occasion for it. It is expressly found that those in control of the engine had no knowledge of the presence of the plaintiff or of his team, and the facts found show that in the situation in which they were, no reasonable diligence would have discovered them to the persons operating the train. It is also specifically found that the sole cause of the fright of the team was the sounding of the whistle and the noise and smoke of the train.
That the appellant was in the exercise of a lawful right in crossing its train over the bridge is not disputed. That the entrance of the locomotive upon the bridge under which the plaintiff was passing was attended with noise and smoke, was of course unavoidable, and thus the rule which requires [533] us, in the absence of a finding to the contrary, to indulge the presumption that the sounding of 'the whistle was, from some cause, a proper and necessary thing to be done, results in the conclusion that the team was frightened from causes that were unavoidable and conduct that was necessary and proper. Unless, therefore, it .can be held that, because the place at which the whistle was sounded was one of extraordinary danger, the mere fact that it was sounded without regard to the occasion for so doing, was negligence per se, the fact of negligence, inferred by the learned judge who tried the cause, would seem to be without support.
Upon well settled principles and upon the authority of cases forming a class to.which this is allied, we think an inference of negligence can not be justified on the hypothesis stated. That the juncture of affairs at the point where the accident happened produced a situation of extraordinary danger, was not blamable to the appellant; that there are such places is one of the necessary incidents to the existence and operation of railways; that such a place existed did not affect either the right of the railway to use its line in any lawful manner, or of the plaintiff to proceed along the highway. Each, however, was under the obligation so to use its own as not unnecessarily to interfere with the rights of the other. Courts take judidal knowledge of the fact that sounding the whistle is, under a variety of circumstances, a necessity. The statute requires it upon the approach of trains to all highways. It is a means of warning persons or animals off the track, and thus, perhaps, saving car loads of passengers from disaster. The danger to persons on an adjacent or intersecting highway must be known and imminent in order to excuse the giving of signals required by law, or which might be necessary to clear its track from trespassing animals, where there was a probability that they might by contact derail the train. On'the other hand, if there was no occasion for blowing the whistle or making any other noise than that necessarily incident to the running of' its train at a place where it [534] might reasonably be supposed that some one who could not be seen might be using a highway so situate as to make its use dangerous, sounding the whistle or making any other unnecessary noise might be the grossest negligence, and if a person on the highway was seen by those in charge of the engine, and the unnecessary sounding of the whistle might put him in peril, such conduct as that supposed 'might be little less than wanton and malicious. But upon the facts as found, we can not know but that the engine was approaching another street crossing, and that the signal given was made in pursuance of the defendant’s statutory duty, or it may have been necessary in order to clear the track of" trespassing animals or to warn some one of the approach of the train. “ The mere sounding of the whistle can not be deemed negligence, although blown in close proximity to the highway, and even though there are horses in the immediate vicinity.” Billman v. Indianapolis, etc., R. R. Co., 76 Ind. 166 (40 Am. R. 230).
In a case involving the principles we are considering it was said : “ It can not be questioned that defendant’s train was rightfully on its track, and that the blowing of a whistle, and the letting off of steam with its attendant noise, are not per se acts of negligence, or evidence of wrongful conduct.” Culp v. Atchison, etc., R. R. Co., 17 Kan. 475. If the servants of the defendant were, guilty of no improper conduct while exercising a lawful right, the fact that the plaintiff’s team took fright at the sound of the whistle, the noise and smoke of the train, can not make it liable. The liability, if any exists, must rest upon some heedless or unnecessary act which was likely to and did produce the fright of the team.
In the case of Philadelphia, etc., R. R. Co. v. Stinger, 78 Pa. St. 219, which is similar in many respects to the case under consideration, it is said, “ the mere fact of whistling furnishes no presumption of negligence.” So in the case of Favor v. Boston, etc., R. R. Co., 114 Mass. 350 (19 Am. R. [535]*535364.) Speaking of the obligation of railroad companies, under circumstances such as we are here considering, the court said: “ I„t has the right to do lawful acts upon its own premises, ánd it is not responsible for injurious consequences that may arise from such acts, unless the acts are negligently and improperly done. If the defendants in this case had ■done some negligent act in the immediate vicinity of the highway, calculated to endanger the safety of travelers passing over it with horses, a very different question would have been presented.”
We may say in this case, since it was found that the place Was one of extraordinary danger, at which accidents were known to have occurred before, if it had been found that the team was frightened by the unnecessary or improper sounding of the whistle, a very different question would have been presented.
The plaintiff relies on the case of Hill v. Portland, etc., R. R. Co., 55 Me. 438. In that case the engineer was in ■a situation to see the plaintiff and his horse before he sounded the whistle. Being so situate he sounded the whistle twice, that being the usual signal for the train to start. The court held that the signals thus given, although customary, were ■unnecessary.
The case of the Pennsylvania R. R. Co. v. Barnett, 59 Pa. "St. 259, which is also relied on, does not support the appellee’s contention. The railway company, in that case, was held liable because it approached a dangerous crossing without giving any warning. This was held to be negligence.
The statement in the last paragraph that the railway company “ was guilty of negligence in running said engine and “train over said crossing over said highway, and thereby negligently frightened the team,” adds no force to the finding nf facts. This is but a conclusion, and must rest for its support on the facts found. Pittsburgh, etc., R. R. Co. v. Spencer, 98 Ind. 186.
It results that upon the facts found by the court the' infer-[536] ence that the defendant was negligent was not justified, and the conclusion of law should have been that the plaintiff was not guilty of negligence.
Filed Dec. 29, 1885.
The judgment of the court is reversed with costs, with instructions to the court below to state conclusions of law on the facts found in accordance with this opinion, and to render judgment accordingly.