stating that the drawing of an inference of negligence “does not fix the proximate cause of the accident, but the jury must still determine the proximate cause, even though such permissible inference of negligence is drawn. The doctrine of res ipsa loquitur is not a rule which fixes the proximate cause of an injury, but only a rule of evidence allowing a permissible inference of negligence under a certain set of facts.”
How later courts described this case
- stating that the drawing of an inference of negligence “does not fix the proximate cause of the accident, but the jury must still determine the proximate cause, even though such permissible inference of negligence is drawn. The doctrine of res ipsa loquitur is not a rule which fixes the proximate cause of an injury, but only a rule of evidence allowing a permissible inference of negligence under a certain set of facts.”
- holding inference of negligence under res ipsa lo-quitur was still permissible although defendant presented evidence that plaintiff may have been contributorily negligent
- “We are not unmindful of the importance and the desirability of stable principles of law upon which litigants may rely, but where a rule announced in an opinion works an obvious injustice upon litigants and is not supported by any authority that we can find, it should be eliminated from the body of precedents of this jurisdiction.”
- “Our books are full of cases which hold that ... if an instruction is given concerning a fact or set of facts to which no evidence has been adduced, it will be reversible error unless it clearly appears that the party affected was not harmed thereby.” (collecting cases), reh’g denied, 237 Ind. 456, 147 N.E.2d 237 (Ind.1958)
Written by the judges who cited it.
The opinion
On Petition for Rehearing
Arterburn, J.
The appellant has filed a petition for rehearing in which it states it feels we have not complied with our duty in specifically disposing of the question raised by appellant’s objections to appellee’s Instruction No. 4.
In our opinion we stated;
“Appellant also contends that it is not guilty of negligence by reason of the failure to sound a *495 whistle on the locomotive because of an ordinance of the City of Fort Wayne ...”
It is true we did not mention specifically Instruction No. 4 in considering the ordinance of the City of Fort Wayne and its application to the case.
For fear that we may not have been as specific as we should have been in disposing of the question, we shall be more specific. Appellant, in its petition for rehearing, states:
“The question properly raised, supported by proper objection in the trial court, was that appellee’s Instruction 4 entirely ignored the ordinance and tells the jury that appellant was required to whistle in violation of the ordinance and that the failure to do so constituted negligence.” (Our italics)
Instruction No. 4 complained of is as follows:
“While I have instructed you as to the duty and care of the Plaintiff in approaching the railroad crossing at Anthony Blvd. where she was injured, it was the duty of said Defendant to give timely warning, of the approach of its locomotive and train of cars on said track to the Plaintiff while approaching said street crossing, and this the defendant was bound to do, whether or not there was a statute or ordinance requiring signals to be given at said street crossing, and any failure to exercise this care required on the part of said Defendant at said street crossing, if shown, to exist in this case, was negligence on the part of said Defendant.”
The objections made thereto by the appellant are as follows:
“Defendant objects to the giving of plaintiff’s Instruction No. 4, for the reason that it presupposes that the plaintiff has been injured, which said fact is a fact to be determined by the Jury, and therefore, said instruction invades the province of the Jury, and for the further reason that there *496 is a whistle ordinance in the City of Fort Wayne, which is a part of the record, which requires locomotives not to sound their whistle.”
Appellant throughout its brief assumes appellee sustained an injury and no contention is made on that point before us on appeal.
We find no statement in the instruction to the effect that it “tells the jury that appellant was required to whistle in violation of the ordinance.” The fact is the instruction is in harmony with and should be read in connection with Instruction No. 7 tendered by the appellee and given by the -court, to which the appellant made no objection. Instruction No. 7 reads as follows:
“I instruct you that there was in full force and effect in the City of Fort Wayne, Indiana, on the 10th day of November, 1953, an ordinance known as Railroad Ordinance of the City of Fort Wayne, Indiana, Section Three of which reads as follows:
“ ‘Section 3, Blowing Whistles:
“ ‘It shall be unlawful for any person running or controlling any locomotive to sound the whistle thereof or allow the same to be sounded within the corporate limits of the City, unless to prevent accidents which cannot otherwise be arrested.’
“I therefore instruct you that this ordinance relieves defendant from sounding its whistle as required by statute, unless, it is necessary to prevent accidents which cannot otherwise be arrested.”
Instruction No. 4 states that the defendant has a duty to give “timely warning” regardless of whether or not an ordinance or statute required it at the street crossing. The instruction does not say a warning should be given even though prohibited by an ordinance. Instructions 4 and 7 are consistent and harmonious and should be construed together. 3 Lowe’s Revision, Work’s *497 Indiana Practice, Sec. 55.63, p. 487. Limiting our examination to the objections made and presented in the brief, the appellant has pointed out no error in the Instruction No. 4.
Our attention has been called to the fact that appellee died on May 6, 1956 after the appeal was submitted to the Appellate Court of this state, but before it was transferred to this court. Under Burns’ §2-3235 no substitution of parties is necessary, and it is our opinion there is no reason for a change of parties upon a transfer of this cause to this court.
The petition for rehearing is denied.
Emmert, C. J., Landis and Achor, JJ., concur.
Bobbitt, J., dissents.
Note. — Reported in 146 N. E. 2d 531 .
Rehearing denied 147 N. E. 2d 237 .