Palmer v. Chicago, St. L.&P.R. Co.

• Decision Date: 15 November 1887
• Citation: 112 Ind. 250,14 N.E. 70
• Parties: Palmer v. Chicago, St. L. & P. R. Co.
• Court: Indiana Supreme Court

112 Ind. 250

14 N.E. 70

Palmer

v.Chicago, St. L. & P. R. Co.

Supreme Court of Indiana.

November 15, 1887.

Appeal from circuit court, Lake county.

Wood & Wood, for appellant. N. O. Ross, for appellee.

Elliott, J.

There is evidence showing these facts: James W. Palmer, 17 years of age, was run over and killed by one of the appellee's trains while walking along its track not far from a highway crossing in the village of Leroy. His hearing was so defective that he could not hear the rumble of an approaching train if very far off, but he could hear the whistle of the locomotive.

The father of the young man said in the course of his testimony: “I looked up on top of the grade and saw this train coming. James was walking right to the track. I just ran across the track between the main track and the switch, and I took off my hat and signaled to him to stop. He never saw the train. I don't know that the engineer saw me. I ran to within sixty-six feet of him, and it was to about twenty-four rods of where they killed the boy. When James went on the track he looked west and he looked east the same as common. He expected the western freight train, likely, going west, instead of this eastern extra passenger. The train was about eighty rods from me when I made the signals. I saw the boy was not looking back. I took off my hat and swung it for a signal. I knew what the signals are, as well as they did, on a railroad track. I have been on it long enough. I ran on swinging my hat till they knocked me down. I was tolerably close to the boy myself. I ran ahead waving my hat. I aimed to run ahead of the boy so he would see me and get off the track. I ran right across the main track between the switch. I ran towards the boy between the tracks. I ran within sixty-six feet of the boy, and it was twenty-four rods to where he was struck from where he stepped on the track. The engineer was on the south side when the train passed the switch. Right where I put up the switch light the engineer yelled out. That was within six or eight or ten rods of the house. By ‘yelled out,’ I mean he whistled. There was no slackening of speed that I could see. When they whistled they were within about thirty rods of the boy. The train was running through the village at pretty close to forty miles an hour. It knocked me from the track. The village has about seventy-five inhabitants. There are two stores on the south side of the track, and a hay barn on the north side. It, the train, threw me on the ground. It was, I think, the wind of the train that did it.” The mother of the deceased testified that she was standing in a “shanty used as a cook room;” that she saw her husband running and waving his hat, and that he hallooed so loud that she heard him above the noise of the train. The engineer of the train testified that he saw the deceased on the track; that he whistled several times to warn him; that he expected that he would leave the track, and that he did not know that the deceased was deaf. The engineer also testified: “I was at the window looking out, and had been most if not the entire time after leaving Crown Point. I saw two persons on the track; one was some distance behind the other, and both were going in the same direction the train was going. The hindmost one, or the one nearest the train, got off the track after I sounded the whistle. I could not tell whether either of them was running or not; if he was I did not discover the fact. I did not see either of them wave a hat.” The trial court sustained the appellee's demurrer to the evidence.

It is important at the outset to state the principles which the court must obey in considering a demurrer to evidence, and these are. First. The court is bound to accept as true all the facts which the evidence tends to prove, and, as against the party demurring, to draw from the evidence all such reasonable inferences as a jury might draw. Willcuts v. Northwestern, etc., Co., 81 Ind. 300, and cases cited; Hagenbuck v. McClaskey, Id. 577; Radcliff v. Radford, 96 Ind. 482;McLean v. Equitable, etc., Co., 100 Ind. 127;North British, etc., Co. v. Crutchfield, 108 Ind. 518, 9 N. E. Rep. 458. Second. If there is a conflict in the evidence, then only such evidence as is favorable to the party against whom the demurrer is directed can be considered, and that which is favorable to the demurring party is deemed to be withdrawn. Fritz v. Clark, 80 Ind, 591;Ruddell v. Tyner, 87 Ind. 529;Adams v. State, Id. 573; McLean v. Insurance Co., 100 Ind. 127;Lake Shore, etc., Co. v. Foster, 104 Ind. 293, 4 N. E. Rep. 20.

The question, therefore, as the record presents it to us, is this: Does the evidence, considering only that which is favorable to the appellant, and yielding to him the full benefit of all the reasonable inferences for which it supplies a foundation, entitle him to a recovery on the cause of action stated in the complaint? We have restricted our statement of the question to saying that the evidence must be such as will support the cause of action declared on, because, even on a demurrer to the evidence, it is only on that cause of action that there can be a recovery. Under the firmly settled rule the deceased must be regarded as having been a trespasser on the track of the railroadcompany at the time of his death. Louisville, etc., Co. v. Ader, 110 Ind. 376, 11 N. E. Rep. 437; Railroad Co. v. Mann, 107 Ind. 89, 7 N. E. Rep. 893; Louisville, etc., Co. v. Bryan, 107 Ind. 51, 7 N. E. Rep. 807; Louisville, etc., Co. v. Schmidt, 106 Ind. 73, 5 N. E. Rep. 684; Chicago, etc., Co. v. Hedges, 105 Ind. 398, 7 N. E. Rep. 801; There Haute, etc., Co. v. Graham, 95 Ind. 286;Indianapolis, etc., Co. v. McLaren, 62 Ind. 566. As he was a trespasser, no action will lie against the corporation for causing his death, unless the act of its employes was willful. A trespasser cannot maintain an action where the tort of the defendant is nothing more than the omission to exercise care. Terre Haute, etc., Co. v. Graham, supra; Pennsylvania Co. v. Sinclair, supra; Beach, Neg. 205, 208, 209.

If, then, this action can be maintained it must be on the ground that the wrongful acts of the employes of the appellee were willful. We regard the decision in Terre Haute, etc., Co. v. Graham, 95 Ind. 286, as correctly declaring the general rule upon this subject, and we cannot depart from it. Louisville, etc., Co. v. Ader, supra; Railroad Co. v. Mann, supra; Louisville, etc., Co. v. Bryan, supra; Beach, Neg. 209. We have no doubt that the case of Terre Haute, etc., Co. v. Graham is right in asserting that an engineer of a moving train has a right to presume, until the last moment, that a person walking on the track will leave it in time to avert danger. Nor do we doubt that these general rules were correctly applied in that case. Pennsylvania, etc., Co. v. Sinclair, 62 Ind. 301;Indianapolis, etc., Co. v. McLaren, supra; Donaldson v. Milwaukee, etc., Co., 21 Minn. 293;Gaynor v. Old Colony, etc., Co., 100 Mass. 208;Morrissey v. Eastern, etc., Co., 126 Mass. 377;Mason v. Railway Co., 27 Kan. 83, 41 Amer. Rep. 405; Rothe v. Milwaukee, etc., Co., 21 Wis. 256;Harty v. Central, etc., Co., 42 N. Y. 468;Lake Shore, etc., Co. v. Miller, 25 Mich. 279. But, while we fully affirm the doctrine of the case referred to, we cannot regard it as decisive of this case, upon the theory on which the appellant's argument proceeds. It is our judgment that there may be a willful act in a legal sense without a formal and direct intention to kill or wound any particular person. There may, in other words, be a constructive or an implied intent without an express one. To use an illustration supplied by one of the members of the court in consultation: suppose that a warning signal is given an engineer, clearly conveying to his mind that there is danger ahead, that he sees the signal of warning, and, regardless of the warning thus given, he keeps his engine in motion, and runs upon a bridge weakened by flood or fire, would there not be willfulness in a legal sense, although there was nothing more than a willful disregard of danger? Or, to take another illustration, suppose an engineer sees two men on the track, and sees one of them making signals to the other to leave it, would it not be willfulness to run upon the man to whom the signals were made without any effort to check the train? Of course, without such signals, or something of a warning nature, to attract the attention of the engineer, he would have a right to presume that the man would leave the track, but to keep on in disregard of signals of warning seen by him is a very different thing from proceeding where there is nothing to arouse attention, and create a belief that there is reason why the train should be brought to a halt. Once again, to illustrate, suppose a man is on the track, in reality fastened there, but, in appearance, at full liberty to leave it at will, this appearance would justify the engineer in presuming that he would step from it in time to escape danger, and there would not be willfulness in running upon him, but if the fact be added to this supposed case that a third person was seen by the engineer endeavoring to warn the man off the track, or signaling for the train to stop, would it not, in legal contemplation, be a willful act to keep the train in motion without any effort at all to bring it to a stop? It seems to us that these examples show that there may be cases where there would be willfulness, although there was no direct or positive intention or design to inflict injury.

The authorities from the earliest years of the common law recognize the rule that there may be a willful wrong without a direct design to do harm. This principle has been applied to furious driving, to collisions between vessels, to the taking of unruly animals into crowds, to carelessly laying out poison for rats, to the want of caution towards drunken persons, and to the careless carting of logs,...