Louisville, N.A.&C. Ry. Co. v. Bryan

• Citation: 7 N.E. 807,107 Ind. 51
• Court: Supreme Court of Indiana
• Decision Date: 16 June 1886
• Parties: Louisville, N. A. & C. Ry. Co. v. Bryan.

107 Ind. 51

7 N.E. 807

Louisville, N. A. & C. Ry. Co.

v.Bryan.

Supreme Court of Indiana.

June 16, 1886.

Appeal from Clinton circuit court.

W. H. Russell and Geo. W. Friedley, for appellant.

J. B. Sherwood, for appellee.

Mitchell, J.

This action was brought by Bryan against the railway company, to recover damages for killing one horse and injuring another while both were being driven, in a buggy, by the plaintiff, across the defendant's track, at a street crossing in the northern part of the city of La Fayette. The complaint was in two paragraphs, one of which counted upon the negligence of the defendant, while the other was to recover for an injury alleged to have been purposely or willfully committed.In the one paragraph suitable averments to the effect that the plaintiff exercised due care, and was without fault, are found. In the other no such averments are contained. By their general verdict the jury found for the plaintiff on the latter paragraph, and for the defendant on the first. Judgment was rendered accordingly.

One of the errors assigned is that the court erred in overruling a demurrer to that paragraph of the complaint upon which the verdict and judgment against the appellant rest. There being no averment that the plaintiff was without fault, an inference arises that he may have been guilty of contributory negligence, and therefore, unless the complaint, by the specific statement of facts, rebuts this inference, or charges that the injury was purposely and willfully committed, it states no cause of action. The charging part of the paragraph is in these words:

“And that said collision was caused by the reckless, negligent, and willful conduct of said employes and servants of said defendant in the management of said locomotive, in this, to-wit: that said locomotive was being propelled at an exceedingly high and dangerous rate of speed, and was being propelled backwards, and that the whistle on said locomotive was not sounded, and the bell was not rung, to give warning of the approach of said locomotive, by the employes and servants of said defendant in charge of said locomotive; that said crossing was made extra dangerous by the track being hidden from view for some distance by intervening buildings,-all of which was well known to said defendant, and its servants and employes, as aforesaid.”

The general charge is that the collision was caused by the reckless, negligent, and willful conduct of the defendant's employes and servants. The specific acts of willfulness charged, are that they propelled the locomotive backwards over a crossing which was hidden from view by intervening buildings, at a dangerous rate of speed, without giving warning by ringing the bell or sounding the whistle. That the conduct imputed to the employes of the railway company was negligent cannot be doubted; but negligence, no matter how gross, cannot avail in an action where it is necessary, on account of the plaintiff's contributory negligence, to aver and prove that the injury was inflicted by design, or with an actual or constructive intent. In such a case it is incumbent on the plaintiff to aver and prove that the injury was intentional, or that the act or omission which produced it was willful, and of such a character as that the injury which followed must reasonably have been anticipated as the natural and probable consequence of the act. Where one person negligently comes into a situation of peril, before another can be held liable to an injury to him, it must appear...