The opinion
On Petition for Rehearing.
Caldwell, J.
11. *255 12. *250 In support of the petition for rehearing it is urged in behalf of appellee that this court erred in holding that the trial court improperly admitted the testimony of the witness Kane, a locomotive engineer. Our decision in that respect is based on grounds as follows: That the witness was not shown to be competent to give an opinion as an expert on the subject to which his testimony was directed, namely, the proper management of an interurban electric car, and in fact that it affirmatively appeared that he was not qualified to speak on that subject, and that the evidence was offered and admitted apparently on a theory foreign to the issues being tried, but that its nature was such that its tendency was to influence the jury in determining the issues as presented by the pleadings. It is insisted in behalf of appellee that, even if it be conceded that the trial court erred in admitting such testimony, appellant is not in a position to avail itself of such error, for the reason that it first offered and introduced evidence of a like nature. Appellee appeals to the principle that where a party opens the door for the admission of incompetent evidence, he is in no position to complain that his ad *251 versary followed through the door thus opened and introduced like evidence. Appellee cites among other cases the following: Perkins v. Hayward (1890), 124 Ind. 445 , 24 N. E. 1033 , and Lowe v. Ryan (1884), 94 Ind. 450 . Not doubting the soundness of the principle thus appealed to, we proceed to determine the extent that it is applicable and controlling here, if at all. The circumstances referred to by appellee as involving the introduction of improper and incompetent evidence by appellant, and as arousing such principle, are substantially as follows: Appellee in presenting his case in chief introduced evidence tending to show that the Summitville car, on being hailed as it approached Hiatt’s crossing, always responded to such hail by two short blasts of the whistle, and that the car was then slowed down and brought to a stop at the crossing to receive as passengers the persons so hailing the car. It was averred in the complaint, in substance, that two short blasts of the whistle given in response to a hail signified that the car would stop. Appellee’s case is predicated on decedent’s right to reply on such manner of operating such car, and that any ear so responding to a hail would be brought to a stop, but that the car involved here, although it so responded to the hail, did not slow down or stop. The complaint proceeds on the theory that the Summitville car was the only interurban car that stopped at Hiatt’s crossing to receive passengers, and that it stopped only on hail. Appellee in his original brief so interprets the complaint, and he recognizes such as its theory in the brief filed on petition for a rehearing. Appellee’s evidence in chief supports the complaint in this respect. There was no averment and appellee introduced no evidence that interurban cars other than the Summitville car did not also respond to a hail at this crossing by sounding two short blasts of the whistle; nor was there averment or evi *252 dence introduced by appellee as to what knowledge decedent had as to the manner of operating other interurban cars in this respect at the crossing. Appellee then left it to conjecture as to whether all cars on being hailed when approaching the crossing responded by two short blasts of the whistle, and as to decedent’s knowledge on that subject. Appellee’s case then was planted on a custom that had been established respecting the operation of the local car and a failure to observe such custom, but appellee failed to establish that such custom was confined to local cars. If such custom was broader than was indicated by appellee’s evidence, and if all cars when hailed on approaching the crossing responded to the hail by two short blasts of the whistle, and only cars thereupon slowed down and stopped, it is apparent that such fact would be important in determining the question of appellant’s negligence and possibly also appellee’s contributory negligence. Appellee’s line of reasoning as applied to the entire case and stated syllogistically is as follows: Local cars approaching the crossing on being hailed answered? by two short blasts of the whistle and thereupon slowed down and stopped, but limited cars did not stop at the crossing. The car involved here on being hailed responded by the two short blasts. Wherefore decedent believed and had a right to believe that the approaching car was a local car and that it would slow down and stop at the crossing. It will be observed that the minor premise is not fairly embraced by the major premise, and that as a consequence the conclusion does not inevitably follow. In order that the major premise might fairly comprehend the minor premise, the former should be to the effect that only local cars so responded or that limited cars did not so respond. Under such circumstances it seems apparent to us that it would have been entirely proper for appellant to introduce evidence that all cars, *253 both local and limited, on being hailed responded by two short blasts of the whistle, but that only local cars thereupon slowed down and stopped, since thereby appellant would have rendered more evident the incongruity between the major and the minor premises of the syllogism as constructed. Appellant, under such circumstances, introduced testimony which appellee contends was erroneously heard, and which opened the door to the testimony of the witness Kane, the locomotive engineer. The facts are as follows: Appellant produced several witnesses who testified that they were engaged in operating interurban cars, some of them on the road involved here, and that they had had a number of years’ experience in that line of work. They were then permitted to testify in effect that, a hail being observed as in the case at bar, proper operation required that the whistle be sounded two short blasts and, if the car were one that stopped at that place on hail, that it be brought to a stop; otherwise that-fit proceed; and also that as interurban electric cars, including appellant’s cars, are operated, two short blasts of the whistle are merely an answer to any signal that the motorman may observe or hear, that they are not indicative of anything that the motorman intends to do; that they have no significance other than that the motorman has seen or heard the signal given to him. In view of the fact that appellee, in support of the contention that decedent was justified in believing that the approaching car was the Summitville car, introduced evidence that the limited car gave two short blasts of the whistle when the motorman observed a hail, and in view also of the allegations of the complaint to the effect that two short blasts of the whistle signified that the car would stop, it is our judgment that this evidence was properly heard. It, with the rules that were introduced, had a tendency to establish that it was the duty *254 of the motorman to sound the blasts under the circumstances regardless of the nature of the car, and consequently in explanation of why they were sounded on the occasion involved here, and such evidence also tended to meet the allegations of the complaint respecting the significance of the answering signal. It was under such circumstances that the court permitted the witness Kane, who had been a locomotive engineer on a steam railroad, but who had had no experience in operating interurban electric cars, and did not pretend to have any knowledge on that subject, to testify in effect that, had the road been a steam road, and had a locomotive rather than an electric car been approaching, good railroading would have required that when the hail was observed the whistle be sounded two short blasts, and that the locomotive be brought to a stop. This evidence could have been offered for no other purpose than to persuade the jury that like duties rested on the motorman of the electric car, regardless of whether the approaching car was a local or a limited car, and such is the effect reasonably to have been anticipated from its introduction. As we have said, it not only had not been shown that the witness Kane was competent to speak on the subject to which his testimony was intended to be and probably was applied by the jury, but the fact of such incompetency affirmatively appeared. Moreover,' the state of the evidence did not call for rebuttal to the effect that any car, limited or local, under the circumstances, should have answered the hail by two short blasts of the whistle and then come to a stop. Appellee’s complaint was not grounded on such theory. It has never been appellee’s contention that it was the duty of the motorman of the limited car to respond to the hail and then stop the car. The complaint is predicated on the theory that the' duty to stop the car grew out of the fact that the hail was answered. *255 The state of the evidence called for rebuttal to the effect that only local cars that intended to stop when hailed should respond by two short blasts, and that such blasts had such significance. The duty to stop the car was a very important element in appellee’s cause of action, and we, therefore, believe that the evidence of the witness Kane was improperly admitted, and that its admission was presumably prejudicial. We adhere to our ruling. It may be said that appellee in his original brief did not contend that the error, if any, in admitting the testimony of the witness Kane was not available to appellant or that the court did not err in admitting such evidence. In the original brief, however, as in the brief in support of the petition for a rehearing, appellee contends that appellant’s points on that subject are so general as not to present any question. Such points are somewhat general, but this court has no difficulty in ascertaining the ruling to which they are directed. Under such circumstances, it is the duty of this court to give them consideration.
Petition for rehearing is overruled.
Note. — Reported in 114 N. E. 478 , 115 N. E. 101 . Carriers: duty of, in respect to taking up passengers, 118 Am. St. 470.