The opinion
Dissenting Opinion.
Hackney, J.
I can not concur in the opinion that the rate of speed of the train on the day in question can be shown by testimony of the speed of such train on other *412 days. The condition of weather, the connection with other railway lines, and the character of the train as to the number of cars and the number of passengers carried necessarily establish a variant rate of speed. If a witness may state generally the speed of a train, as a rule, prior to the accident, each observation of the witness may be inquired into, and his several observations rebutted by testimony. Thus it will be seen that a collateral issue becomes a source of the most fruitful investigation before the jury. If the rate of speed as involved in the case of Ohio, etc., R. W. Co. v. Selby, 47 Ind. 471 , was as to the safety of passengers or freight being hauled over a track in a particular condition, it is not in point here, because the rate of speed at which a train may be run as to its own safety or the safety of its passengers is materially different from the rate of speed at which it may be run as affecting the safety of others using a highway crossing.
Filed Feb. 2, 1893.
Indeed it may, with some force, be contended that because the train ran at the rate of sixty miles habitually, and no one was injured until this occasion, it was not negligence to run at that rate on this occasion. The particular occasion, with all of the conditions attending it, should be the guide to the determination of the existence or nonexistence of negligence, and the jury should not be permitted to go astray upon the proposition that negligence may be inferred to-day from negligence yesterday. Nor can I conclude that such evidence is corroborative of the theory of the plaintiff that the speed was of a negligent rate to-day because, as the witness Riley testified, the train had run fast enough on another or other occasions, that the suction from its rapid passage took chickens, trash, and dirt after it.
Olds, J., concurs with Hackney, J.