Reinhard, J.
On a former appeal this case was reversed on account of an error of the trial court in directing a verdict for the defendants. Neubacher v. Indianapolis Union R. W. Co., 134 Ind. 25.
The action is'by Louis Neubacher against the appellant, The Lake Erie & Western Railway Company, and the Chicago, etc., R. W. Co., commonly called the “Panhandle,” for damages for personal injuries alleged to have been received by Neubacher at the crossing of appellant’s railroad and South Delaware street, in the city of Indianapolis. Appellant hied a demurrer to the amended complaint, which was overruled and an exception saved. There was an answer in general denial, trial by jury, and a general verdict in favor of appellee, Neubacher, and against the appellant in the sum of $3,000.00. The jury also found in favor of the-other appellees, the Lake Erie & Western and the Chicago, etc., R. W. Co.
[23]*23Appellant moved for judgment on the answers to the interrogatories returned by the jury, notwithstanding the general verdict, but the court overruled the motion and appellant excepted.
The errors assigned relate to the ruling of the court in overruling the demurrer to the complaint, in overruling appellant’s motion, and sustaining appellee’s motion for judgment on the answers to the interrogatories. The first mentioned error has been expressly waived. The second and third present the question of the appellant’s liability under the amended complaint and answers to interrogatories.
It is insisted in argument, on behalf of appellant: 1. That the answers to the interrogatories disclose that the negligence upon ivhich the jury held the appellant liable was not that or any of that charged in the complaint. 2. That the jury’s answers to the interrogatories show that the appellee, Neubacher, was guilty of contributory negligence.
As to the appellant, the Indianapolis Union Railway Company, the complaint charges the following facts: That appellant had for years owned various railroad tracks in Indianapolis, crossing various streets in the city and entering the Union Depot; that for that time these tracks had joined the tracks of various other railroad companies, including those of the “Panhandle” and Lake Erie companies, whose tracks also run through said city; that such connections and tracks were the means by which such other companies reached the Union Depot with their trains; that the connecting companies pay the Union company a rental for such use of its tracks; that the “Panhandle” is a “proprietary owner” in the Union company and has representation on its managing board; that South Delaware street in said city runs north and south, east from the Union Depot, and is [24]*24crossed by two groups of tracks 100 feet apart, the southernmost group being three tracks of the “Big Four” road and the other being composed of three tracks of defendant, the Union company; that the crossing is near the center of the city and many persons and teams cross there at all hours daily; that each of said groups of tracks accommodated the business of several roads, and great numbers of engines and cars passed over that street upon those tracks at all hours daily, in engines more than 200 — two-thirds of which passed upon the north group; that a gatekeeper’s box stood eighteen feet north of south group and west of the street, and safety gates stood south of the south group, and north of the north group, and could be operated by a lever in the street twenty-five feet east of the gatekeeper’s box; that at the time of plaintiff’s injury, the defendants, the Lake Erie company and, the Panhandle company, and the other companies, used the north group to get to and from the Union Depot; that an ordinance of the city required moving trains to sound the bell while moving in the city, to run at not more than four miles an hour, and, while running backward that a watchman shall be stationed at the rear end to avoid accident; that another ordinance required that safety gates shall be erected, for the protection of the public, “at each of said crossings;” that a competent person shall be employed to operate the gates, who shall be on duty from 6 a. m. to 9 p. m.; that plaintiff, a worker in brass, at about 7 p. m., November 20, 1888, was going from his home to his shop; that in so doing he went north on Virginia avenue to its crossing of the Union company’s tracks, thence west along the south side thereof, upon a path which had been for a long time much used by the public generally as a highway, with the knowledge and permission of the [25]*25defendants, to said South Delaware street, a distance along the tracks of about 500 feet; that while so going west he was walking directly toward the Union Depot; that it was dark, and at the Delaware street crossing was a single gas lamp on the west side of Delaware street and near the south side of the north group of tracks; that, as he approached the crossing a passenger train of the Panhandle company, going ■west into the Union Depot, overtook him, moving on the south track of the north group — the track nearest to plaintiff — and that the engine of that train reached the east side of Delaware street at about the same time plaintiff reached that point; that that train consisted of an engine and several cars; that no other train was then in sight or hearing; that there was no flagman at said crossing to warn travelers of trains, nor did any of the defendants have there any means of giving such warning which was made use of; that plaintiff stood upon the east sidewalk until the Panhandle train had passed; that the safety gates were open; that no operator was at the operating station; that no attempt to close the gates was made; that no flagman was at said crossing; that no warning was given of an approaching train; that, plaintiff having been all the time looking and listening for trains, seeing and hearing none, and not knowing that one was approaching, and not being warned by defendants, or either of them, of the approach of any other train, and believing that he might safely cross the north group of tracks, walked north on Delaware street over said north group of tracks — not later than 8 p. m. of said day — when he was struck on said crossing by a train of cars of the defendant, the Lake Erie & Western Railroad Company, backing upon the said second track (of the north group) eastward by the side of the other train and hidden by it, down from said depot to [26]*26its yards, and was knocked down by tbe same and greatly injured (describing tbe injuries); that said injuries were caused without any fault of plaintiff, and were caused solely by tbe negligence of tbe defendants. After tbe foregoing, by way of preamble, tbe complaint proceeds to charge as negligence tbe following: That defendants, and each of them, negligently ran said trains, as aforesaid, so that tbe sound of tbe bell, if said bell was being rung, and tbe noise of tbe engine and rumble of tbe said Lake Erie & Western Railwaytrainwere drowned by, and were not distinguishable from tbe sound of tbe bell which was being rung, and tbe noise of tbe engine and rumble of tbe cars of said Chicago, St. L. & P. R. R. train; and tbe defendant Indianapolis Union Railway Company negligently allowed said trains to be so run; that tbe defendants, and.each of them, negligently ran said trains, as aforesaid, so that tbe approach of said Lake Erie & Western Railway train to said crossing was bidden by tbe said C., St. L. & P. train from tbe plaintiff and any other person about to go upon said crossing; and tbe defendant, tbe Indianapolis Union Railway Company, negligently allowed said trains to be so run ; that defendants, and each of them, negligently ran said trains, as aforesaid, so near together that tbe signals required by law of said L. E. & W. R. W. trains were.rendered unavailing, and tbe defendant, tbe Indianapolis Union company, negligently allowed said train to so run; that the defendant, tbe L. E. & W. R. W. Co. negligently ran its train, as aforesaid, over said crossing, and upon plaintiff at a greater rate of speed than four miles an hour, and tbe defendant, tbe Indianapolis Union Railway Company, negligently allowed said train to be so run; that defendants, and each of them, negligently failed to have a flagman at [27]*27said crossing at said time, to warn persons about to cross of approaching trains, or to have and use any other adequate, feasible, and reasonable means of giving such warning; that defendants, and each of them, negligently failed to close said gates; that defendants, and each of them, at said time, negligently failed to have a gatekeeper at said crossing to close said gates; that defendants, and each of them, negligently failed at said time, to have, maintain, and close the safety gates on the south side of said crossing; that defendants, and each of them, negligently failed, at said time, to have at said crossing a flagman, provided with proper and conspicuous signals to warn persons about to cross of the approach of trains; that defendants, and each of them, negligently ran, or allowed to be^un, said L. E. & W. train over said-crossing and upon plaintiff, as aforesaid, without giving plaintiff proper and timely notice of the approach of the same; that by reason of the aforesaid negligence of defendants, plaintiff was injured, as aforesaid.
Appellant’s counsel, in their brief, have separated the several acts of negligence charged in the complaint, and stated them as follows:
1. Negligently allowing two of appellant’s licensees, the Lake Erie and Panhandle companies, in using its parallel tracks at Delaware street, to run a' west bound train of the Panhandle (pulling head on) and an east bound train of the Lake Erie (backing) over the crossing at almost the same time, and in so doing, the Panhandle train obstructed plaintiff’s view of the east bound track and of the Lake Erie train backing east thereon, and the noise of the bell of the Panhandle train and its rumble obliterated and rendered inaudible to the plaintiff the rumble of the Lake Erie train and of any warning it may have been giving by bell or otherwise.
[28]*282. That the Union company negligently allowed these two trains to so run so near together that the signals required by law of the L. E. & W. train were unavailing.
3. That the Union company negligently allowed the Lake Erie train to run over the crossing and upon plaintiff at a rate of over four miles an hour, in violation of the city ordinance.
4. That the Union company (with the other defendants) negligently failed, at said time (time of the passing of the trains mentioned), to have a flagman at the crossing, or to have or use any other adequate, feasible, and reasonable means of giving warning.
5. That the Union company (with the other defendants) at said time negligently failed to have a gatekeeper at said crossing to close the gates.
6. That the Union company (with the other defendants) at said time, negligently failed to close the gates.
7. That the Union company (with the other defendants) negligently failed, at said time, to have, maintain and close safety gates on the south side of the crossing.
8. That the Union company (with the other defend-, ants) negligently failed, at said time, to have at the crossing a flagman provided with proper and conspicuous signals to warn travelers of approaching trains.
9. That the Union company (with the other defendants) negligently ran or allowed said Lake Erie & Western train to be run over the crossing and upon plaintiff, as aforesaid, without giving plaintiff timely notice of the approach of said L. E. & W. train.
The appellant argues that it was called to meet these issues, and none other; that if it did not (1) omit [29]*29to do, or do, or allow to be done, any of tbe things charged as negligently omitted, done, or allowed to be done, at the time the train of its licensee, the L. E. & W. Co., was approaching the crossing from the west on the east bound track at the time of and just before a collision between the L. E. & W. train and plaintiff, then the case made against it in the complaint was not proved, and it should have had judgment. If the plaintiff did not (2) prove his freedom from fault contributing to his injury, the appellant should have had judgment.
The jury were required to answer a large number of interrogatories, 119 in all. We shall not undertake to set them out in this opinion.
The evidence is not in the record.
Of course, every presumption is in favor of the general verdict. If there were no answers to interrogatories, the presumption would be conclusive that the evidence makes out a case in favor of the plaintiff (appellee), according to the allegations of the complaint. But it is claimed that the answers to the interrogatories establish a different case from that stated in the complaint. If this is so, the answers to the interrogatories must clearly show it, for they can be allowed to overthrow the general verdict only when there is such antagonism upon the face of the record as is beyond any possibility of being removed by any evidence legitimately admissible under the issues. Gaar, Scott & Co. v. Rose, 3 Ind. App. 269, 275; Baldwin v. Shill, 3 Ind. App. 291, 298; Estate of Reeves v. Moore, 4 Ind. App. 492; Walter A. Wood, etc., Machine Co. v. Irons, 10 Ind. App. 454, 458; Phillips v. Michaels, Gdn., 11 Ind. App. 672; Chicago, etc., R. R. Co. v. Zimmerman, Admx., 12 Ind. App. 504; Louisville, etc., R. R. Co. v. Cronbach, Admr., 12 Ind. App. 666, 674.
[30]*30It is a familiar rule that every case must proceed upon some definite theory, and that if a complaint is based upon one theory it cannot be sustained upon some other. The allegations and the proof must correspond, else there can be no recovery. Becker v. Baumgartner, 5 Ind. App. 576; Louisville, etc., R. R. Co. v. Godman, 104 Ind. 490; Evansville, etc., R. R. Co. v. Barnes, 137 Ind. 306.
Hence, the negligence charged in the complaint; or some of it, must be made out by the evidence. It is not sufficient to prove some other negligence with which the defendant might have been, but was not charged.
It was charged in the complaint that the train which struck the appellee and inflicted his injury was a Lake Erie & Western train. The answers to the interrogatories state that the jury do not know what train it was, nor whether it was a passenger or freight train. This we regard as equivalent to a finding that there was no evidence that the train which ran upon the appellee was a Lake Erie & Western train, and hence it must be admitted, we think, that that portion of the complaint which alleges that the appellee’s injuries were received from a Lake Erie & Western train was not established. It is not essential, however, that every averment in a complaint should be proved. It is sufficient if the material allegations be establishhed. Was this such an allegation as was required to be proved as laid?
We do not regard the allegation as to the identical train that injured appellee as material. All the trains in and about the Union Station were operated under the directions of the appellant. It was just as responsible for one as the other. Whether the appellant allowed a Lake Erie train or a train belonging to any [31]*31other company to commit the negligent act is of no consequence, if it permitted it to be done at all and the consequences ensued which are charged in the complaint.
If the appellant had owned all the trains that were being operated in and about the Union Depot, and it had been averred in the complaint that the train which injured the appellee was train No. 5, when in fact it was train No. 4, we apprehend it would hardly be claimed that this was a fatal variance. So, in this case, the name or description or ownership of the train cuts but little, if any figure. The gist of the action did not lie in the infliction of the injury by reason of the ownership of the particular train that ran into the appellee. The complaint would have been good as against appellant without stating whose train it was.
The appellant’s duty was to see that none of the trains were operated in such a way that the signals required by them, or any one of them, were unavailing; not to permit such trains to be run at a greater speed than four miles per hour; to have a flagman at the crossing and to use other adequate means of giving warning; to have a gatekeeper to open and close the gates at the crossing when proper; to see that the gates were closed when a train was about to pass the crossing; not to allow any train to run over a crossing and upon a pedestrian thereat without giving the required notice of the approach of such train. The violation of these duties were the fundamental charges contained in the complaint and which the appellant was required to meet, and not the averment as to the particular kind of train it was which ran upon the appellee, or to whom it belonged, or how it was numbered or otherwise described, and the question is, to what extent, if any, were these charges established?
[32]*32In view of the fact that the appellant had a large number of parallel tracks at its station, and was in the very nature of things required to operate and cross over these tracks some 200 trains daily, some of which would be likely to cross at the same time and in opposite directions, and in view of the fact that many bells might be ringing, and whistles blowing at the same time, because of these and other matters, showing the great and constant danger to pedestrians and others desiring to pass said crossing at any time, it became necessary, as alleged, to adopt greater precautions than might have been otherwise required. The gist of the negligence, then, was in failing to adopt the necessary and required precautionary measures, in doing, or omitting to do, acts which induced appellee to go upon the crossing when it was unsafe by reason of an approaching train, and in violating the ordinances as to maintaining gates and concerning the rate of speed at which trains should run. The presumption prevails (in the absence of the evidence) that all these things were proved, unless it be overcome by the direct finding of the jury in the answers to interrogatories.
If we grant that the jury’s finding is such that no recovery can bé' had' upon the alleged negligence in allowing the running of the trains at an illegal rate of speed, there is still enough left not to antagonize the general verdict as to other negligent acts charged. The general verdict is a finding in favor of appellee on every material point, and unless the answers to interrogatories come squarely in conflict with it upon some point or points material to the recovery, the general verdict must stand, although it is in conflict, in other respects, with such answers of the jury.
The same is true respecting the question of contributory negligence. Antecedent to any verdict, it is [33]*33true that, under the authorities in this State, there is a presumption that one who was hurt at a railroad crossing by a passing train was negligent, Smith v. Wabash R. R. Co., 141 Ind. 92. This presumption, however, is overcome by the general verdict. Whenever such verdict is returned and approved by the trial court the presumption named ceases to exist and gives way to the contrary presumption that everything has been shown to entitle the plaintiff to such a verdict. Hence, if .the defendant asserts that the verdict is wrong because of a variance between the complaint and the proof, or because the plaintiff was guilty of contributory negligence, the burden is upon such defendant to establish the assertion. This may be done, we grant, by the'answers of the jury to interrogatories, but these must disclose such a state of facts in relation to the variance or contributory negligence of the plaintiff, as will clearly antagonize the general verdict and overcome the presumptions attending it.
The answers to interrogatories show the following as to the place and manner in which appellee was injured: Delaware street is ninety feet wide, runs north and south, and crosses Pogue’s run at a point 150 feet west of the intersection of Virginia avenue and Alabama street, 150 feet east of Pennsylvania street, 1,170 feet east of the west side of Meridian street (east end of Union Depot), and all of these streets (Virginia avenue excepted) run parallel to Delaware street. South of Pogue’s run, Delaware street was crossed by a group of three tracks, known in this case as tracks Nos: 1, 2 and 3, and north of that stream by a group of five tracks, known in this case as tracks Nos. 1, 5, 6, 7 and 8. The two groups were separated by a bridge over the stream 100 feet long and of the [34]*34full width of Delaware street, including its sidewalks. The south group of tracks was in no way connected with the accident. The north group consisted of parallel tracks. No. 4 was next to and twelve feet north of the bank of Pogue’s run; No. 5 was 7 3-10 feet north of No. 4, and No. 6 was 7 5-12 feet north of No. 5, and from track 6 to the north “safety gate” it was 6 feet. Nos. 7 and 8 were further north, and had been abandoned as railroad tracks and cut off from any railroad connection long before the accident. These tracks were all standard gauge, 4 feet 8 inches. Track 4 was the Union company’s west bound main, and track 6 was a Panhandle switch. Tracks 4 and 5 ran parallel and straight, upon about a level grade from Alabama street'to a point about 90 feet west of Pennsylvania street. Appellee walked along this 12 foot strip of ground north of Pogue’s run and south of track 4 from the intersection of Virginia avenue (a diagonal street) and Alabama street, to the east sidewalk of Delaware street. When he reached that point a Panhandle passenger train going west on track 4, consisting of an engine at the west end, and four or five cars, overtook him and he stopped on the east sidewalk and stood about six feet south of track 4 to allow that train to pass him. Its headlight was burning and was casting its light to the west; its bell was ringing and it was running at about four miles an hour. He stood there until the rear car of the Panhandle train had passed him about two feet, and then walked directly north, on the east sidewalk, over track 4, and the space between that and track 5, without stopping, and while he was crossing track 5, was struck by the east end of the east car of a train backing east on that track, after dark, between 6:30 and 7 p. m. Plaintiff had passed over the crossing almost daily — by day and night — for years, but had ob[35]*35served that safety gates were operated by day,' and that at night a flagman, with red lamp signal, was used instead of the gates. As he came west to Delaware street, and while he stood there he observed that the south safety gate was open and was not operated for the passage of the west bound train, and it was so dark that he could not see the south gate, and knew nothing about whether it was being operated or not. At the time the west bound train crossed over and when the train which struck appellee was crossing, and while appellee was attempting to pass the crossing, the appellant’s flagman was on Pogue’s run bridge, “flagging trains,” but the appellee failed to see him. Appellee, as he stood waiting for the west bound train to pass him, knew that it was — while near him — between him and track 5, and that it cut off the view" of that track and of trains thereon, if any, and he knew and had in mind that the noises made by the west bound train might prevent his hearing the noises made by any train that might be coming east on track 5. It was the practice of the appellant, on the day of the accident, and for several months prior thereto, to operate the tvro safety gates at the Delaware street crossing named in the complaint, as a warning to travelers on the street, from 6:80 o’clock a. m. until dark, and from dark until 9 o’clock p. m. to substitute a flagman with a red lantern, who 'would signal with such lantern to travelers on the street when the crossing was not safe, but appellee did not know this. The ordinance, however, required the appellant to operate the safety gates at all times when trains were passing, up to 9 o’clock at night. The appellee received no signal or invitation to cross or not to cross from the flagman, except that the gate was open. As soon as the west bound train had passed him, the appellee started to cross the tracks north, and when he had [36]*36reached track 4, on which the west bound train had passed, said train had only passed him by eight feet.
The jury, in answers to interrogatories, also stated that if appellee had waited on the south side of track 4,. or upon track 4, until the west bound train had moved farther west (how far west or how long the appellee should have waited they do not state), he could, by looking and listening, have seen and heard the east bound train in time to avoid the injury. They also found that he did not hear the east bound train because of the confusion of noises of the two trains, and he did not see it because the west bound train obstructed his vision. They expressly found that he looked both east and toward the Union Station (west) after starting across the track.
In answer to a question the jury also stated that they did not know why appellee did not see the train with which he collided in time to avoid it; and to another question, they answered that the train was not in plain sight.
We do not think the answers to the interrogatories conclusively show a case of negligence different from that stated in the complaint. It is shown that at least one of its legal duties was violated by the appellant as charged, viz: the duty of opening and closing the safety gates. There is nothing to show that the appellant was exempt from the performance of this duty after nightfall. On the contrary, it was its duty to operate the gates till 9 o’clock p. m. It is true appellee did not pass through the north gate himself, but when he saw it open, in the absence of a clear showing that he knew it was not being operated at night, he had the right to assume, we think, that it was safe to pass over the tracks, else the appellant would -have closed the gate.
It is also true, as appellant’s counsel contend, that [37]*37appellee saw the gate remain open while the west bound train was passing, but this was not conclusive evidence that the gate was not being operated. Just what the effect of such knowledge was we cannot say, as it was a question for the jury. The appellee saw no flagman and saw no signal of danger. Did he not have the right to assume, therefore, that it was safe for him to cross? The jury had a right to conclude that he did.
A feature of the negligence charged, or, perhaps, more correctly speaking, a reason for the requirement of special precautionary measures, was the running of trains so closely together on the tracks as to cause the noises made by such running to prevent a person attempting to cross, from hearing the distinct sound of the approaching train or its signals. To permit such noises and the passing of trains at such short intervals was not necessarily negligence, but it necessarily created additional danger to the pedestrian who might desire to cross, and brought with it the necessary requirement of providing such signals of warning as would be sure to apprise travelers over the crossing of the approach of trains. One of the precautionary measures was the ordinance requiring safety gates to be erected and operated. The failure to maintain and operate them, there, up to 9 o’clock at night, was in plain violation of the ordinance and was negligence. This negligence was charged in the complaint, and it is not shown that there was any failure to prove it. Even if it had been permissible to substitute the flagman before 9 o’clock, it was not shown that the latter gave any available signals. ,
Under the circumstances, we also think the question of contributory negligence was one for the jury. The mere fact that the appellee did not wait until the west bound train was so far out of the way as to en[38]*38able him to see and hear whether a train might not be approaching from the west was not necessarily negligence. Whether it would or would not be negligence contributory to the injury is owing to the peculiar circumstances surrounding the occurrence. There might have been a number of reasons why it would not have been prudent for him to wait. He might have been confused by the lights or other objects, as the jury found, and indeed, for aught that appears, there might have been engines on the tracks which rendered it necessary for him to act promptly. It is not claimed that the appellee failed to look and listen as far as it lay in his power to do so. Indeed, the contrary is directly found. The chief complaint seems to be that he did not wait for the west bound train to get so far beyond him as to enable him to ascertain whether a train was approaching from the west to the east. The fact that the safety gate was open was an indication that no train was approaching. Pennsylvania Co. v. Steigmeir, 118 Ind. 305. When the facts and circumstances are such as to have a tendency to mislead one about to pass such a crossing, the law will not hold him to that strict accountability that it would under ordinary conditions. In all such cases the question of contributory negligence is for the jury. Grand Rapids, etc., R. R. Co. v. Harrington, 131 Ind. 426; Mayo v. Boston & Maine Railroad, 104 Mass. 137.
It is expressly held in the case last cited that the mere fact that one passing over a railroad track at a highway crossing begins to cross at a time when his view along the tracks is obstructed by the departing train, is not. conclusive that such person did not use due care. Precisely the same point was also decided in Philadelphia-, etc., R. R. Co. v. Carr, 99 Pa. St 505. In that case the court was asked to charge the jury as [39]*39follows: “The fact that a traveler stops and waits until a passing train gets by does not absolve him or her from looking and listening for trains approaching upon the other track in an opposite direction, and a traveler waiting for a train passing in one direction, must wait sufficiently long so that the train shall not prevent him or her seeing a train approaching in an opposite direction. If, therefore, the jury believe that Mrs. Carr, after stopping east of the railroad at Diamond street while the out train was passing, started across at a time when that train prevented her seeing the incoming train, she was guilty of negligence, and cannot recover.”
The court below refused to give this instruction, but charged as follows: “I have already told you that it was Mrs. Carr’s duty on approaching the track with a view of crossing it, to look and listen, to look in both directions, and listen for the approach of trains on either side, and I also said, or it was a necessary inference from it, that if she was delayed in this case, by any cause — the approach of the up train in the case in hand — it would be her duty again to look in both directions and listen before setting out. I am asked to say to you, however, that if under those circumstances a train which passed up the road shut out any portion of the road from view, it would be her duty to wait until that obstacle to vision was removed, and that if she did not do so, it would necessarily be negligence, and preclude her recovery. What I say is, that it would have been a wise and proper precaution, as the event shows. Whether the omission of that precaution be negligence would depend upon circumstances, and I am not willing to take upon myself the responsibility of saying that under the circumstances in this case she would necessarily be guilty of negligence in not waiting until the view of the other track [40]*40was entirely clear. That is for the jury to consider. If the jury find that she was negligent, then the consequence would follow which has been already stated.”
The Supreme Court upheld this instruction, saying: “The learned judge said all that could be said when he charged, that the act of the plaintiff in crossing as she did, might be negligent according to the circumstances, and the force of these he properly left to the determination of the jury. In this there was no error. We think the time has arrived when it would be well for all railroad companies, whose tracks cross the streets of cities and towns at grade, to protect all the street crossings with gates. The growing practice in this direction deserves commendation.”
Although the question as to what constitutes “due care” on the part of one about to pass over a railroad crossing is a legal one, such person being required to listen for signals, notice warning, signs, and look attentively both ways for approaching trains, yet whether the surroundings are such as to admit of these precautions is always a question to be determined by the jury, except in cases where all the ultimate facts have been found in a special verdict, and where only one inference can be drawn from such facts. Cincinnati, etc., R. W. Co. v. Grames, 136 Ind. 39; Smith v. Wabash R. R. Co., supra.
In the case at bar there is no special verdict, the large number of interrogatories and answers thereto being supplemental to the general verdict only. There is nothing in the answers to the interrogatories which necessarily leads to the conclusion that if the appellee had properly exercised his faculties he would not haAre been hurt. It is difficult to lay down any rigid rule as to the exact moment a pedestrian who desires to pass a crossing of the character of the one [41]*41we liaise here to deal with, must start after a train has passed, or how long he shall be required to wait. With the large number of trains and individual engines that almost constantly pass over these tracks, it would be a harsh rule indeed which would require the traveler to wait until such train had gone a sufficient distance to enable him to see if another was coming from the direction which the passing train had taken, as in the time thus required there might be engines or cars approaching from the oxiposite direction, and if he were compelled to wait till all had passed, it might never be possible for him to cross without incurring the risk of being chargeable with contributory negligence.
We have here a crossing containing a large number of parallel tracks upon which trains and single engines are constantly passing and repassing, to the number of hundreds in a single day. The circumstances attending the attempt to pass such a crossing are of course entirely different from those which usually prevail at a crossing in the country, or even in a city where the track is but a single or double one. The rules sought to be invoked by appellant’s learned counsel as to the quantum and kind of care required of a traveler about to go over a crossing are not so arbitrary or unbending as to be equally enforcible under all circumstances and in every surrounding. Such rules are enforced only when the circumstances make them reasonable. 2 Sher. & Redfield Negl. (4th ed.), section 477.
That in such cases the question of negligence or contributory negligence is usually one for the jury, see further: Young v. Detroit, etc., R. W. Co., 56 Mich. 430, 23 N.W. 67; Geveke v. Grand Rapids, etc., R. R. Co., 57 Mich. 589, 24 N.W. 675; Vicksburg, etc., R. R. Co. v. Alexander, 62 Miss. 496; Kellny v. Mo. [42]*42Pac. R.W. Co., 101 Mo. 67, 13 S.W. 806; Adams v. Iron Cliffs Co., 78 Mich. 271, 44 N.W. 270; Smith v. Savannah, etc., R.W. Co., 84 Ga. 698, 11 S. E. 455; Bare v. Pennsylvania R. Co. 135 Pa. St. 95, 19 Atl. 935.
Judgment affirmed.