Pittsburgh, Cincinnati, Chicago & St. Louis Railroad v. Ferrell , 39 Ind. App. 515 ( 1906 )

Comstock, J.

Action brought to recover damages for personal injuries sustained by the appellee, caused by coming in collision with appellant’s train. The complaint was in two paragraphs. Appellant’s demurrer to the first was sustained and to the second overruled. Appellant answered the second paragraph by general denial, and the issue was tried on the second paragraph and the general denial thereto. Cause was submitted to a jury and a general verdict returned in appellee’s favor for $900, for which amount judgment was rendered.

The appellant relies for a reversal of the judgment upon the action of the court in overruling its demurrer to the second paragraph of complaint and in overruling its motion for a new trial. Said paragraph was held to he sufficient by the trial court, as charging wilful injury. Instructions to the jury were given and refused, and the cause was tried upon the theory that said paragraph charged a wilful injury. To quote from appellee’s brief: “There was not the slightest suggestion in the lower court that there was any element of negligence in this case. It was a wilful injury case, pure and simple.” If not good upon this theory, the court erred in overruling appellant’s demurrer.

Omitting the formal parts of said'second paragraph of complaint, it is alleged that the defendant ran a locomotive and a train of cars over, along and upon its said railroad, situated in the town of Whiteland, Johnson county, Indiana, the same being an incorporated town of said State; that at the time said defendant so ran said locomotive and said cars, plaintiff was driving a team of horses, hitched to a wagon, along and upon a street of said town, “the same being a public thoroughfare in said town frequently traveled by large numbers of vehicles and foot passengers, and being situated in a populous part of said county and town; that at the time plaintiff attempted to drive across defendant’s said railroad, where said public thoroughfare crosses the same, and while attempting to cross, as he lawfully might at said point, the same being a public crossing as aforesaid, defendant was wilfully and recklessly running said locomotive with said cars attached over and along said railroad through said town of White-land at an excessive, unusual and highly dangerous rate of speed, to wit, a speed of sixty miles per hour; that, when defendant approached said highway crossing and was attempting to pass over the same as aforesaid, defendant, well knowing the dangerous location of the same, and well •knowing that the same was situated in a populous section of said county and town, and well knowing that said crossing was frequented by large numbers of teams and foot passengers, who must needs cross said defendant’s railroad at said crossing, wilfully, purposely and recklessly, without regard to life or limb of the people who were crossing at that crossing, and without regard to the welfare of this plaintiff, ran its locomotive and train of cars over and against the team that plaintiff was driving, and against this plaintiff, with great force and violence,' and by reason thereof said wagon was torn in fragments, said horses were instantly killed, and plaintiff was thrown a great distance with immense force, so that he was severely hurt and injured thereby, internally and externally, being bruised,” etc.

Wilfulness implies design. It involves conduct which ia gwim-criminal. Walker v. Wehking (1902), 29 Ind. App. 62; Union Traction Co. v. Lowe (1903), 31 Ind. App. 336; Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62; Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571. It is said in Kalen v. Terre Haute, etc., R. Co. (1897), 18 Ind. App. 202, 63 Am. St. 343, that “to be good as a complaint for wilful injury, it should show by some consistent form of averment that the injurious act was purposely done with the intent on the part of the doer to inflict wilfully and purposely the particular injury of which complaint is made.” Wilfulness is a desire or intention to produce a certain result. In Union Traction Co. v. Lowe, supra, the court said: “This paragraph of complaint is clearly insufficient. It falls far short, under the law as announced in the decided cases in this State, of stating a cause of action for a wilful injury. It seems to be a settled law of this State that a complaint which seeks redress for a wilful injury, involving, as it does, conduct which is §-uasi'-criminal, must aver that the injurious act was purposely and intentionally committed with the intent wilfully and purposely to inflict the injury complained of.” Wilfulness and negligence are held inconsistent. Purpose or design is foreign to negligence. Parker v. Pennsylvania Co. (1893), 134 Ind. 673, 23 L. R. A. 552. Wilfulness cannot be inferred from mere knowledge on the part of the operatives of the appellant oí the presence of the injured party. Before wilfulness will be inferred such operatives must have knowledge also of the inability of the injured party to avoid the injury. Parker v. Pennsylvania Co., supra; Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62; Cleveland, etc., R. Co. v. Miller (1898), 149 Ind. 490. Where the doer was without knowledge of the presence and situation and peril of the injured party, the act done cannot be said to have been wilfully inflicted. Brooks v. Pittsburgh, etc., R. Co., supra; Parker v. Pennsylvania Co., supra.

A complaint charging wilful injury must be strictly-construed. Union Traction Co. v. Lowe, supra. So that the paragraph of complaint before us, to be sufficient, should allege that the injurious act was purposely done with the intent on the part of the doer to inflict the injury of which complaint is made. Said paragraph does not allege that those operating the train knew of appellee’s presence on and near the crossing. It is not averred that the injurious act was purposely done with the intent on the part of the doer, wilfully to inflict the injury of which complaint is made. In Conner v. Citizens St. R. Co. (1896), 146 Ind. 430, 435, the court says: “The substance of the rule as established by the cases to which we have referred is, that to entitle one to recover for an injury, without showing his own freedom from contributory fault, the injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been committed under such circumstances as that its natural and reasonable consequence would be to produce injury to others, the actor having knowledge of the situation of those others.” The only averment of wilfulness exists in the charge of the running of the train at a high rate of speed over a public crossing in a populous section of the town, knowing that said section was populated by large numbers of teams and foot passengers who must cross said defendant’s road at said crossing. There is no averment that statutory signals were not given, not that any ordinance of the town was violated, nor that appellant knew that appellee was on or near the crossing. As against the pleader, in ruling upon the demurrer, we must presume that the railroad at the crossing in question, in both directions, was straight and open, and free from obstructions of any kind for a distance of eighty rods, and that the whistle was sounded and the bell rung as required by the statute. These conditions are inconsistent with a wilful intent. Such acts are not even negligence per se at an ordinary country crossing. Lake Shore, etc., R. Co. v. Barnes (1906), 166 Ind. 7.

Counsel for appellee contend that there are two classes of wilful injury cases: (1) Those in which the act that produced the injury was intentional; (2) those in which the act that produced the injury was done under circumstances such as evinced a reckless disregard of inflicting the injury complained of; that the case at bar belongs to the second class. The following cases are cited: Louisville, etc., R. Co. v. Bryan (1886), 107 Ind. 51, 53; Belt R., etc., Co. v. Mann (1886), 107 Ind. 89, 92; Louisville, etc., R. Co. v. Ader (1887), 110 Ind. 376, 380; Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 387; Brannon v. Kokomo, etc., Gravel Road Co. (1888), 115 Ind. 115, 7 Am. St. 411; Citizens St. R. Co. v. Willoeby (1893), 134 Ind. 563; Chicago, etc., R. Co. v. Spilker (1893), 134 Ind. 380; Korrady v. Lake Shore, etc., R. Co. (1892), 131 Ind. 261; Cleveland, etc., R. Co. v. Miller (1898), 149 Ind. 490, 499; Pittsburgh, etc., R. Co. v. Judd (1894), 10 Ind. App. 213; Louisville, etc., R. Co. v. Oronbach (1895), 12 Ind. App. 666; Lake Erie, etc., R, Co. v. Brafford (1896), 15 Ind. App. 655, 661; Miller v. Miller (1897), 17 Ind. App. 605; Hancock v. Lake Erie, etc., R. Co. (1898), 21 Ind. App. 10, 19; Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62. Counsel for appellee call special attention to Belt R., etc., Co. v. Mann, supra; Chicago, etc., R. Co. v. Spilker, supra; Cleveland, etc., R. Co. v. Miller, supra; Brooks v. Pittsburgh, etc., R. Co., supra. In Belt R., etc., Co. v. Mann, supra, Mitchell, J., speaking for the court, says: “The use of the phrase ‘wilful negligence,’ in the connection in which it is frequently employed, is, to say the least, inapt. Whatever idea the word ‘wilful’ may express when so used, it is beyond question that to entitle one to recover for an injury to which his own negligence may have contributed, the injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been so committed under such circumstances as that its natural and probable consequence would be to produce injury to others. There must have been either an actual or constructive intent to commit the injury. The act must have involved conduct, quasi-criminal in character. * * * To constitute a wilful injury the act or omission which produced it must have been purposed and intentional, or must have been committed under such circumstances as evinced a reckless disregard for the safety of others.” In substance, the language above set out has been followed in every opinion involving the question before us since delivered in this State, and in some of them the exact language has been used. The following expression also occurs in the opinion: “There is no language in the paragraph under consideration which can be said to charge that the appellant’s employes had an intent, either actual or constructive, to commit the injuries complained of. It does not appear that they had knowledge of the plaintiff’s presence in time to avoid the collision, or that the crossing was of such a character as that the natural and probable consequence of running an engine, in the manner described, would be to produce an injury such as that suffered by the plaintiff.”

The question before us is one of 'pleading, not of evidence. If, upon a sufficient complaint, we were discussing the sufficiency of the evidence, the doctrine of implied intent would be properly considered. The rule requires that facts must be averred and proved in the case. It is averred only by recital that people were crossing at said crossing. The paragraph in question is defective in failing to aver that the servants of the appellant operating the train knew of appellee’s presence on or near the crossing, and that the injurious act was prompted with the intent upon the part of the doer wilfully to inflict the injury of which complaint is made. In wilful injuries the intention with which the act is done constitutes the wrong, and is the gist of the charge. In pleading, that intent will not he inferred. An intent to commit a wilful injury may be inferred from facts proved, because intent may be established by positive or circumstantial evidence. An intent to kill, as has often been said, may be inferred from the discharge of a loaded gun upon the public street or into a crowd, but it would be necessary, in an indictment for homicide, under such a state of facts, to charge that the act was done with intent to kill. A quasi-criminal act consists of an act and intent. The union of the two is necessary — both must be charged. “In pleading, facts must be directly and positively alleged, while in regard to evidence conclusions may be inferred from facts and circumstances without positive statements.” Laporte Carriage Co. v. Sullender (1905), 165 Ind. 290, and eases cited. The only averment which can be claimed to show intent is that appellant purposely ran its locomotive against appellee. The pleader evidently relied upon the facts averred to raise the presumption of criminal intent. Under the decisions of this State the averment is not sufficient.

An examination of the. evidence shows that the charge of wilfulness, if properly made, is not sustained. The following is a condensed recital of the evidence: Appellant’s track through Whitelaud ran north and south. The station building was north of the highway and east of the railroad track. East of the station was a closet and coal shed. East of these was the blacksmith shop. East of the blacksmith shop was Dr. Phipps’s premises, on which were an orchard, dwelling-house and outbuildings. North of Dr. Phipps’s premises was the canning factory. The station building was forty feet long and sixteen feet wide, and it was twenty feet east of the center of the railroad track. The open space between the closet and the blacksmith shop was twenty feet. These improvements were all upon the land lying between the highway and railroad track, the canning factory being about one-quarter of a mile north of the crossing. These improvements created a partial obstruction to the view of the track to one driving from the canning factory to the crossing. Just south of the crossing was an elevator. When the elevator and canning factory were in operation, as they were on the date of the accident, both made rumbling noises that could be heard a distance of from one-quarter to one-half mile away. Appellant’s train, a regular passenger train, approached and passed over the crossing at a speed of from fifty to sixty miles per hour. The highway was used by the public, and from one hundred to one hundred twenty-five teams' passed over the crossing daily during the summer season, when the canning factory was in operation. When the train was one-quarter of a mile north of the crossing the whistle signal was sounded and the bell was rung continuously until the train passed over the crossing. Appellee was familiar with the crossing • and with the fact that fast trains made use of the track and crossing. Appellee had taken a load of peas to the canning factory, and in doing so had passed over the crossing. After unloading the peas, appellee drove the team from the canning factory southwestwardly to the crossing. Bert Voris was riding on the wagon with him. Appellee drove at a brisk trot from the canning factory to within five or eight feet of the crossing. When the heads of the horses came within from five to eight feet of the railroad track, the horses, of their own volition, slowed down to a walk, and proceeded onto the crossing, where the collision occurred. Appellee did not, nor did the team, stop at any point between the canning factory and the crossing. On the way from the canning factory to the crossing Bert Voris called appellee’s attention to the fact that it was about train time, and appellee stepped to the forward part of the wagon and looked for the train, tightening the lines in his hands as he did so. As appellee and Voris approached the crossing between the blacksmith shop and station building, Melton Hughes, after hearing the train signal, attempted to signal them by waving his hand and hallooing, “Hello, boys, yonder is the train!” At this time the team was going in a trot, and appellee and Voris were engaged in conversation. They continued to converse in this way until the horses’. heads were almost to the railroad track. When the team went 'upon the crossing it was struck by the train, killing both horses, breaking the wagon and harness, throwing appellee some distance from the wagon and inflicting upon him the injuries complained of. By stopping north of the blacksmith shop, or between the blacksmith shop and the station, appellee could have seen part of the track north of the station. The engineer in charge of the locomotive did not see appellee or know of his presence in the vicinity of the crossing at any time before the collision occurred. The fireman, who was in the cab with the engineer, discovered appellee just as he was about to enter on the railroad track, but too late to take steps to stop the engine and avert the accident. Before this the fireman had not seen the appellee and had no knowledge of his presence in the vicinity of the crossing.

To refer more particularly to the testimony of the engineer, he testified that he was in his proper place, on the right side (west side) of the engine; that the crossing was free and clear of obstructions, as far as he could see; that he was running the train on schedule time, at forty miles an hour; that the crossing appeared to he clear, and he believed it to he clear, and that he had no intention of injuring the plaintiff or any one. The testimony of these witnesses furnishes no evidence to sustain the charge of wilful injury. If there is any evidence tending to support its. charge, it must be in the fact that the train ran at the high rate of from fifty to sixty miles an hour over the crossing over which from one hundred to one hundred twenty-five teams passed daily during the summer season when the canning factory was in operation. This high rate of speed might show heedlessness, hut not wilfulness. In Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62, 10, the court say: “It must he borne in mind that while the evidence tends to prove that the appellee’s servants were heedless of the rights of persons who might he upon the crossing, yet that there is no evidence that such servants had knowledge that any person was upon or near the crossing.” The evidence in fact shows that after the plaintiff’s first danger was seen by the fireman, there was no opportunity or time to avoid the accident.

In the case of Lake Shore, etc., R. Co. v. Barnes (1906), 166 Ind. 7, it is said not to he negligence for railroad companies to run their trains over ordinary public crossings, in the absence of a speed ordinance, at any speed they choose, not inconsistent with the safety of the persons and things in their charge. In this case the evidence shows that the train was run in the usual manner, In the usual way and on schedule time. Presumptions may arise from circumstances, hut they are not conclusive as against positive evidence. No presumption of the wrongful purpose can arise from the fact that lawful signals were given of appellant’s approaching train; nor can such presumption arise from the running of the train in a lawful manner, without knowledge of the presence of any one near the track, because knowledge is essential to purpose.

We have considered only the question of wilfulness, and, if we concede that the complaint is sufficient upon that theory, the charge is without support in the evidence.

Judgment reversed, with instructions to sustain the demurrer to the complaint.

Black and Myers, JJ., concur in the result. Concurring opinion by Wiley, J. Robinson, O. J., dissents. Dissenting- opinion by Roby, J.