In an action for injuries at a crossing an instruction defining "ordinary care" to be that degree of care which a person of ordinary prupresumed to exercise to avoid injury, followed dence under the particular circumstances is by the sentence "Such care is required to be in proportion to the injury to be avoided, and the fatal consequences that may result from the neglect," was not erroneous because of the use of the phrase "fatal consequences" which related to quantum rather than degree of care and was not objectionable as informing the jury that plaintiff's care must be measured by to have occurred, and not by those he should the fatal consequences after they were known have apprehended prior to the collision. It is stated in the main opinion that the [ 3. Railroads 351 (12)—Instruction on "orSupreme Court of this state has held, in dinary care" required of person injured held not erroneous. Berry v. Berry, 147 Ind. 176, 46 N. E. 470, and Shafer v. Shafer, 181 Ind. 244, 104 N. E. 507, that a proceeding to have a person adjudged an incompetent is a civil action within the Code. If I am able to comprehend those cases, they do not so hold. It is a familiar rule that where the Legislature creates a special proceeding, but does not prescribe a full and complete procedure therefor, then with respect to the issuance and service of summons, reserving exceptions, filling bills of exceptions, and other features not specified in the special statute, the general code practice will supply the deficiency. The two cases last mentioued give recognition to that rule and nothing more, so far as this feature is concerned. It would be just as reasonable to say that a proceeding to establish a ditch, to vacate a street, or to relocate a county seat, is an action within the Civil Code. I am convinced that the judgment is wholly unauthorized by law and void, and that it is the duty of the trial court to clear its record of the void matter. If I am wrong in this, then because of the gross irregularities the judgment should be set aside and Mrs. Harvey should be permitted to have her day in court to defend against the complaint. When she has gained her liberty by either method, it will then be the duty of the guardian to render an accounting. GUION v. TERRE HAUTE, INDIANAPOLIS [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Ordinary Care.] 4. Appeal and error 1032 (3)-Error in instruction on contributory negligence held not ground for reversal. If an instruction omitting the element of proximate cause in defining contributory negthe jury to find against plaintiff if it found he ligence was erroneous, in that it authorized had been guilty of any negligence, however remote, which merely helped to produce injury without contributing thereto, it was not ground for reversal, where he failed to point out any evidence of remote negligence to which the jury might have applied the instruction and thereby harmed him. 5. Railroads 324(1)—Track for electric cars "railroad track." A traction company's track is a railroad track within the rule that the presence of a crossing is a warning of danger, notwithstanding cars are operated by electricity instead of steam. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Rail (Appellate Court of Indiana, Division No. 1. road Track.] March 13, 1924.) 1. Negligence 68-Quantum of care required is in proportion to dangers. The quantum of care used by persons of ordinary prudence, when acting as such, is in proportion to the dangers to be avoided, and the injuries that may result if such care is not observed, and if a party uses that care he discharges his duty, notwithstanding an injury may have been sustained which might have been avoided by the exercise of a higher degree or a greater quantum of care. 2. Negligence 68 Rule of ordinary care stated. A person charged with the duty of exercising ordinary care for his own safety, or the safety of another, will not have discharged that duty unless he shall have taken into account the fatal as well as the less serious consequences that are likely to happen from a known danger, and shall have exercised quantum of care proportionate thereto. a 6. Railroads 324(1) — Presence of tracks warning of danger. The presence of all railroad tracks is a warning of danger to any one attempting to cross them, notwithstanding such danger may be reduced by the observance of precautions on the part of those operating the railroads, and, in attempting to cross the tracks, a person must endeavor to avoid the danger by the use of ordinary care. 7. Railroads 351 (16)-Instruction on duty to look and listen held not to impose greater duty than ordinary care. An instruction that "it is the duty of a person about to cross railroad tracks to use his eyes and ears ** in such manner as that a person can, if possible, in the exercise of ordinary care, see and hear," held not to impose a higher duty than the law requires, in view of the phrase "in the exercise of ordinary care" which is used in connection with the words "if possible." For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (143 N.E.) 8. Railroads 351(16)—Instruction on presumption of law as to traveler's observations held not erroneous. An instruction that a person about to cross a railroad track is presumed in law to have seen that which he could have seen by looking in the exercise of ordinary care, and to hear that which he could have heard in the exercise of ordinary care, held not objectionable as in view of double use in the instruction of phrase "in the exercise of ordinary care," which served as a limitation on the presumption stated. 9. Railroads 316(2)-Slackening of speed at crossing not required. Where a train and a traveler on the highway approach a crossing at the same time, it is the duty of the traveler in obedience to the known custom of the country to stop and not attempt to pass in front of the advancing train, the engineer not being required to slacken speed, in view of presumption that the traveler will stop at a place of safety. graph, and is based on alleged negligence of appellee in the operation of said car, as it approached and passed over said crossing. The complaint was answered by a general denial, after which the cause was submitted to a jury for trial, resulting in a verdict and judgment for appellee. Appellant filed a motion for a new trial, which was overruled, and this appeal followed, based on the action of the court in so ruling. [1] The only reasons upon which appellant relies, in support of his contention that the court erred in overruling his motion for a new trial, relate to the action of the court Instruction in giving certain instructions. No. 3, given by the court on its own motion, reads as follows: "The law interprets ordinary care to be that degree of care which a person of ordinary prudence under the particular circumstances is presumed to exercise to avoid injury. Such care 10. Railroads 316(2)—Instruction on speed is required to be in proportion to the danger at crossing held not erroneous. II. Railroads 327 (8)-Duty of traveler to look. While plaintiff was not required to have looked for defendant's electric car when it was 1,000 feet from the crossing, or when it was at any certain distance therefrom, it was his duty to look for it while it was at such a distance that he could have avoided colliding with it, in the exercise of ordinary care, and his failure to see such car or, seeing it, give heed to its approach, or giving heed, but not in time to avoid collision, in the exercise of ordinary care was negligence. to be avoided and the fatal consequences that may result from the neglect." Appellant contends that this instruction contains an erroneous definition of ordinary care, because of the presence of the last sentence therein. We do not so view it. If ordinary care is such as the first sentence in the instruction states, which appellant does not challenge, we may add, as a matter of common knowledge, that the quantum of care used by persons of ordinary prudence, when acting as such, is in proportion to the dangers to be avoided, and the injuries that may result, if such care is not observed. Union T. Co. v. Berry (1919) 188 Ind. 514, 121 N. E. 655, 124 N. E. 737. It follows, therefore, that, where such a quantum of care is not shown, it cannot be said that ordinary care was exercised. If, however, the care used is of the quantum stated, the party upon whom its exercise devolves has discharged his full duty in that regard, although an injury may have been sustained, which might have been avoided by the exer Appeal from Circuit Court, Hendricks cise of a higher degree, or a greater quantum County; Z. E. Dougan, Judge. Action by Roy Guion against the Terre Haute, Indianapolis & Eastern Traction Company. Judgment for defendant, and plaintiff appeals. Affirmed. of care. [2, 3] Appellant complains of the use of the phrase "fatal consequences" as used in said last sentence, and contends that its use therein renders the instruction erroneous, citing the recent case of Terre Haute, etc., Emsley Johnson and Beckett & Beckett, T. Co. v. Phillips (1921) 191 Ind. 374, 132 all of Indianapolis, for appellant. M E. Foley, of Indianapolis, and Geo. W. Brill and O. E. Gulley, both of Danville, for appellee. BATMAN, J. Appellant seeks to recover damages for personal injuries, sustained in a collision between an automobile driven by him and one of appellee's cars, at a crossing of a public highway by the latter's track. The amended complaint is in a single para N. E. 740. The instruction involved in that case is distinguishable from the instruction in the instant case in this, that the phrase in question in the case cited was used in connection with a statement as to the degree of care required of one of the parties, which was open to a construction that ordinary care might not suffice, while in the instant case the phrase is used in an instruction, which is one of a series in which the degree of care was properly defined as “or For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes dinary care," and follows a sentence which gives a standard by which such care is to be measured, and therefore clearly relates to the quantum rather than the degree of care. Appellant contends that the effect of the case cited is to eliminate the use of such phrase in proper instructions, involving the question of due care in actions of this kind, notwithstanding the repeated approval of instructions containing the same. We cannot agree that the case cited has such an effect, as there is nothing inherently objectionable in the phrase, but only in its improper use, as we have indicated. Certainly a person charged with the duty of exercising ordinary care for his own safety, or the safety of another, will not have discharged that duty unless he shall have taken into account the fatal, as well as the less serious, consequences that are liable to happen from a known danger, and shall have exercised a quantum of care proportionate thereto. It is finally contended that said last sentence informed the jury that appellant's care must be measured by the fatal consequences, after they were known to have occurred, and not by those he should have apprehended prior to the collision. The concluding portion of said sentence discloses that the jury was not so informed thereby. We conclude that the giving of said instruction, although not as well phrased as it might have been, was not reversible error. is apparent that the jury must have understood that appellant's negligence, in order to be contributory, must have concurred and co-operated with the only other negligence involved, viz. that of appellee. The second reason stated is therefore unavailing. We conclude that appellant has failed to show reversible error in giving said instruction. [5, 6] Instruction No. 2, given by the court on request of appellee, is challenged on the following grounds: (1) It calls the jury's attention to the fact that the presence of a railroad crossing is a warning of danger when such a crossing is not involved in this action. (2) It places imperative duties upon a person about to cross a railroad track, which he is required to perform, although ordinary care might not so require. (3) It places a higher duty on appellant than the law requires, by the use of the italicized words in the following statement therein: "It is the duty of a person about to cross railroad tracks to use his eyes and ears * in such manner as that a person can, if possible in the exercise of ordinary care, see and hear." (Our italics.) (4) It erroneously states the following as a presumption of law, referring to a person about to cross a railroad track: "I instruct you that such person is presumed, in law, to have seen that which he could have seen by looking, in the exercise of ordinary care, and to hear that which he could hear, in the exercise of ordinary care." [4] It is contended that the court erred in giving instruction No. 1, requested by appellee, for the following reasons: (1) It omits the element of proximate cause in defining contributory negligence. (2) It fails to state that appellant's negligence, in order to be such, must have concurred and co-operated with that of appellee. In support of the first reason it is urged that said instruction may have led the jury to return a verdict against appellant, if it found that he had been guilty of any negligence, however remote, which merely helped to produce his injury, without contributing proximately thereto. It suffices to say in answer to this that, if said instruction is erroneous in the particular first stated, appellant has failed to point out any evidence of remote negligence to which the jury may have applied the instruction, and thereby harmed appellant, as was his duty to do, if he seeks a reversal because the instruction would have permitted such an application. Pittsburgh, etc., R. Co. v. Reed (1909) 44 Ind. App. 635, 88 N. E. 1080; Sanitary Can Co. v. McKinney (1912) 52 Ind. App. 379, 100 N. E. 785; Inland Steel Co. v. Gillespie (1913) 181 Ind. 633, 104 N. E. 76; Evansville, etc., R. Co. v. Hoffman (1917) 67 Ind. App. 571, 118 N. E. 151. The instruction clearly precludes the idea that negligence on the part of appellant, in order to be contributory, must have been the sole [7] The third ground is rendered unavailcause of the injury, and, when considered in ing by the presence of the following phrase connection with other instructions given, it"in the exercise of ordinary care," which is The instruction should not be held erroneous on the first ground stated, for the following reasons: Appellee's track was, in fact, a railroad track, notwithstanding cars were operated thereon by electricity instead of steam. Snow v. Indianapolis, etc., R. Co. (1910) 47 Ind. App. 182, 93 N. E. 1089; Brooks v. Muncie, etc., T. Co. (1911) 176 Ind. 298, 95 N. E. 1006. It is obvious that the presence of all railroad tracks, regardless of the power used in operating cars over the same, are warnings of danger to any one attempting to cross the same, although such danger may be reduced by the observance of precautions on the part of those operating such railroads. The observance of such precautions, however, does not change the fact that the presence of the tracks constitutes a warning of danger, which the person attempting to cross the same must endeavor to avoid by the use of ordinary care. Waking v. Cincinnati, etc., R. Co. (1919) 72 Ind. App. 401, 125 N. E. 799. The second ground on which appellant relies is not present in the instruction, when it is considered as a whole. (143 N.E.) used in connection with the words "if possible," of which complaint is made. [8] The fourth ground is likewise unavailing, as the phrase "in the exercise of ordinary care," used twice in that part of the instruction quoted therein, serves as a limitation on the presumption stated. We conIclude that the court did not err in giving said instruction. Complaint is made of the action of the court in giving instruction No. 3, requested by appellee. This instruction is not mandatory, and when read in connection with instruction No. 1, given on request of appellant, the objections made thereto, if valid when considered alone, are so far neutralized as to render its giving harmless. We say this in view of the fact that said instruction No. 1 correctly defines the care to be used in operating cars over an interurban track at a highway crossing, and also states the conditions under which the speed of the car in question would be an element in determining appellee's liability. It is therefore only remotely probable that the jury could have been misled by the use of the words "due regard" in the connection in which it is found in the instruction under consideration, or that the speed of the car might not be so great as to constitute negligence, under certain conditions. We conclude there was no error in giving said instruction. [9, 10] Appellant also complains of the action of the court in giving instruction No. 4, requested by appellee. This instruction is not as well stated as it should have been, but its effect was to inform the jury, if it found that appellee was not guilty of the negligence charged with reference to the headlight and crossing signal, that it would be justified in finding that it was not guilty of operating the car at an excessive rate of speed, if it found that the obstructions of the view in approaching the crossing were not of such a character as to have prevented appellant, had he exercised ordinary care in looking, from seeing the car in time to have stopped and avoided the danger. The general rule in this regard, as stated in a recent decision of this court, applicable to both steam and electric railroads, in rural districts, is as follows: "Where a train and a traveler on the highway' approach a crossing at the same time, it is not the duty of the railway company' to stop its train; but it is the duty of the traveler, in obedience to the known custom of the country, to stop and not attempt to pass in front of the advancing train. The engineer may rely on the presumption that the traveler will stop at a place of safety; and therefore the law imposes no duty on him to slacken the speed of his train." Pittsburgh, etc., R. Co. v. Nichols (1921) 78 Ind. App. 130 N. E. 546. While crossings, which are peculiarly hazardous by reason of an obstructed view, may create a condition falling within the exceptions to such rule, such a condition cannot be said to exist, if, notwithstanding such obstructed view, the traveler, in the exercise of ordinary care in looking, could have seen the approach of a car, in time to stop and avoid a collision therewith. To hold that the operator of a railroad train or car may not assume, in the absence of some special circumstance, that a traveler on the highway will exercise ordinary care for his own safety, and proceed without slackening the speed of his car, would run counter to the well-established rule to the contrary. Cleveland, etc., R. Co. v. Miller (1898) 149 Ind. 490, 49 N. E. 445; Snow v. Indianapolis, etc., R. Co., supra. If the operator of such a train or car may not rely upon such a presumption, then he must slacken his speed at every crossing, in anticipation of the negligence of some traveler, in order to avoid a charge of negligence on his part-something that is clearly not required of him. We find no error in giving said in struction. [11] Instruction No. 14, given on request of appellee, is also challenged. To sustain appellant's contention with respect to this instruction, we would be compelled to hold that the court may not say that a traveler, approaching a railroad crossing in the nighttime, over which an interurban car was being operated, equipped with a lighted headlight, which could have been seen by such traveler, in the exercise of ordinary care, when approaching such crossing, continuously, while it passed over the last 1,000 feet in reaching the same, was guilty of contributory negligence, if he failed to see such car, or to give heed to what he saw, and by reason of such failure drove his car onto the track on which it was being operated, in such close proximity thereto that it was struck thereby. This we cannot do, under the well-established rules, as we are unable to conceive of any circumstances which would excuse appellant's failure to see or to heed the approach of the car. But, if conceivable, there is no evidence of the existence of any such circumstance in the instant case. While it cannot be said that he should have looked for the car when it was 1,000 feet from the crossing, or when it was at any certain distance therefrom, it was his duty to look for it while it was at such a distance that he could have avoided colliding with the same, in the exercise of ordinary care, and his failure to see it at all, or seeing it, his failure to heed its approach, cannot be explained on any other ground than negligence. We say, in view of the facts on which this instruction is predicated, that if he did not see the car, or heed its approach, prior to the collision, he was guilty of negligence, under the circumstances stated, and if he did see it and gave it heed, prior to the col lision, but not in time to avoid the same, in | ignorant of its mechanism and construction, is the exercise of ordinary care, he was guilty not the violation of a lawful requirement. of negligence, under the circumstances stat- Robinson, Jones, and Matthias, JJ., dissenting ed. There was no error committed in giving in part. said instruction. Appellant also predicates error on the action of the court in giving instructions Nos. 6, 7, 11, 15, and 18, requested by appellee. We have carefully examined each of these instructions, and have reached the conclusion that the court did not err in giving any one of them. We find it unnecessary to prolong this opinion by a discussion of appellant's contention with reference thereto, as an application of what we have said in discussing other instructions given affords a sufficient explanation of the reasons which our conclusion is based. Judgment affirmed. WINZELER v. KNOX. (No. 17780.) on Error to Court of Appeals, Williams. County. Action by Robert E. Knox, a minor, by his next friend, Milo P. Knox, against Henry S. Winzeler, doing business as the Ohio Art Company. Judgment for defendant was reversed by the Court of Appeals, and defendant brings error. Affirmed and remanded. -[By Editorial Staff.] This was an action for damages instituted on behalf of employé Knox against an employer, Winzeler, for the failure to observe a lawful requirement. The amended petition alleges that Knox was operating a stamping machine in the manufacture of metal toys; it being a large machine of great power, and in the amended petition it is made sufficiently to appear that the machine was a dangerous one, and therefore necessary to be operated with care and caution on the part of the operator. (Supreme Court of Ohio. March 11, 1924.) The amended petition, at great length, and (Syllabus by the Court.) 1. Master and servant 121 (2), 352-Statute for safeguarding machinery held "lawful requirement" within Compensation Act; statutory duty to guard machinery. with unnecessary detail, describes the machine, the manner of its operation, and the attachments for applying the power and causing it to function. The amended petition states that Winzeler was an employer of Paragraph 7 of section 1027, General Code, more than five men and had complied with is a lawful requirement, and by virtue of its all of the requirements pertaining to insurprovisions, which must be construed in pariance, as provided for by the Workmen's Commateria with sections 871-13, 871-15 and 871 -16, General Code, employers shall guard all dangerous machinery and render the same as free from danger to the life, health, safety, or welfare of employés or frequenters as the nature of the employment will reasonably per mit. 2. Master and servant 258(12)-Pleading necessary to recover for failure to guard stamping machine. In an action to recover for failure to guard a stamping machine, it is necessary to prove, and therefore to plead, that some guard or device has been discovered or invented which could have been attached to the machine and which would have prevented the injuries complained of, and which would not interfere with the efficient operation of the machine. 3. Master and servant pensation Act of the state of Ohio (Gen. Code, §§ 1465-37 to 1465—108). The amended petition charges that while the operator was placing materials between the die and the bedplate of the machine, and without any action on the part of the operator to release the die, it suddenly descended and injured several of his fingers, resulting in amputation of parts thereof. The amended petition repeatedly and at length alleges neglect on the part of defendant in that the machine "was not guarded and protected, the defendant well knowing at the time that such work was dangerous and that said machine was in a dangerous condition for use by plaintiff; and in negligently and carelessly omitting and failing to furnish, provide, and use safety devices and safeguards on and about said machine for the purpose of preventing said plaintiff from getting his fingers between said die and said bedplate of said machine; and negligently and carelessly The common-law duty of an employer to omitting to use and employ processes and methwarn an employé of obvious dangers in the ods reasonably adequate to render the said emoperation of dangerous machinery is not a law-ployment of plaintiff in said factory, and in ful requirement. 352-Common-law duty to warn employé of obvious dangers not a "lawful requirement," within Compensation Act. 4. Master and servant using said machine as required by the laws of said state, safe and secure; by negligently and carelessly omitting to keep said machine in a safe and proper condition to be used by plaintiff at the time; and in negligently permitting said machine, said wheels and belt, to become out of order and repair so that said machine would start suddenly without using said foot treadle; For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 352-Employment of inexperienced servant not a violation of a "lawful requirement," within Compensation Act. The employment of one who is inexperienced in the use and operation of a machine, and |