The opinion
On Petition for Rehearing.
Harvey, J.
12. The following reasons emphasize the propriety of concurring in the recommendation of denying the petition for a rehearing: There was evidence tending to show that the operation of the cars close together, as described in the original opinion, distracted appellee’s attention to the first and from the second; that the noise of the first drowned that of the second and may have rendered whistling useless, so far as appellee was concerned. If the jury found the traveler’s attention so distracted, then the care required of her is not properly defined by the strict rule ordinarily applied to crossing cases, but was less in proportion to the distracting circumstances, i. e., the degree of care an ordinarily prudent person would apply under like circumstances or like distraction.
To such a situation the rule applies which is an *466 nounced in Chicago, etc., R. Co. v. Hedges (1886), 105 Ind. 398, 407 , 7 N. E. 801, 805 , as follows: “If there was any evidence tending to show that the plaintiff’s intestate (appellee) was thrown off his guard by such means as might have such effect upon an ordinarily prudent man — and we think there was some such evidence — it was not wrong to submit to the jury the question of contributory negligence.” See, also, Cleveland, etc., R. Co. v. Lynn (1908), 171 Ind. 589, 595 , 85 N. E. 999 , 86 N. E. 1017 , quoting from Rodrian v. New York, etc., R. Co. (1910), 125 N. Y. 526 , 26 N. E. 741 .
6. Appellant claims • that instruction No. 2 given is erroneous, in that it is mandatory and undertakes to name all the elements of a cause of action justifying such a mandate, but omits an essential element, to wit, that the jury must find that the negligence of the defendant was proximate. Appellant further claims that such a defective mandatory instruction cannot be cured by other instructions supplying the omission. The instruction was not mandatory in the. sense claimed. Chicago, etc., R. Co. v. Lain (1913), 181 Ind. 386, 397 , 103 N. E. 847 . As the instruction did not pretend to detail or cover all elements of a cause of action, the absent element was properly stated in other instructions. Chicago, etc., R. Co. v. Lain, supra, 398 . The petition for rehearing should, be overruled.
Note. — Reported in 115 N. E. 753 , 119 N. E. 369 .