Southern Railway Company v. McNeeley

• Decision Date: 10 June 1909
• Docket Number: 6,622
• Citation: 88 N.E. 710,44 Ind.App. 126
• Parties: SOUTHERN RAILWAY COMPANY ET AL. v. MCNEELEY
• Court: Indiana Appellate Court

88 N.E. 710

44 Ind.App. 126

SOUTHERN RAILWAY COMPANY ET AL. v. MCNEELEY

No. 6,622

Court of Appeals of Indiana

June 10, 1909

From Superior Court of Vanderburgh County; Alexander Gilchrist Judge.

Action by E. Bert McNeeley against the Southern Railway Company and others. From a judgment for plaintiff, defendants appeal.

Reversed.

Alexander P. Humphrey, Edward P. Humphrey, John D. Welman, C. A DeBruler and G. R. DeBruler, for appellants.

Thomas W. Lindsey, W. M. Wheeler and R. E. Roberts, for appellee.

ROBY P. J. Hadley, C. J., and Watson, J., concur. COMSTOCK, J. Rabb and Myers, JJ., concur.

OPINION

ROBY, P.J.

Action by appellee against the Southern Railway Company and others for damages sustained by him in the collision of two passenger-trains, upon one of which he was riding.

The complaint is in two paragraphs, demurrers to each of which were overruled. The cause was tried by a jury. At the conclusion of the evidence the judge gave a peremptory instruction to find for the defendants upon the first paragraph of complaint, and the correctness of such action is challenged by a cross-assignment of error. The court also instructed the jury to return a verdict upon the second paragraph of the complaint in favor of the defendant Evans, and submitted the case to them as to the Southern Railway Company, William H. Beatty and James Buchanan, against whom a verdict of $ 2,000 was returned and judgment was rendered thereon.

The first question for decision is whether the court erred in overruling the separate demurrers of said defendants to the second paragraph of complaint. This pleading is so long, and the facts stated are so involved and connected, that a summary thereof must necessarily contain many omissions.

It is alleged that the appellant railway company, on December 25, 1904, owned and operated a single-track railroad, over which it ran two certain passenger-trains, known as No. 1 and No. 2; that No. 1 left St. Louis at 10:10 o'clock p.m. of said day, and No. 2 left Louisville at 10:15 o'clock p.m. of said day; that the regular meeting place of said trains was at Belmont, Illinois, a point intermediate between the cities named; that No. 1 had the right of way, and it was the duty of No. 2 to take the siding when they met; that the defendant Evans was in the service of said railway company as its train dispatcher, controlling and directing the movement of said trains; that the defendants Beatty and Buchanan were respectively engineer and conductor in charge of train No. 1; that Brown's Crossing was a station on said line in charge of a telegraph operator, and at that point there was a semaphore operated by him; that the appellee was a passenger on No. 2, but had, at the time of the collision hereafter referred to, left the place in the coach provided for passengers, and was, with the consent of the engineer and conductor, riding upon the locomotive engine which drew said train. The different duties of the employes named, their full knowledge of the facts, and other averments of a general nature, are scattered throughout the pleading. It is alleged that said train dispatcher changed the meeting place of said trains, and directed both trains to run thirty minutes late between Brown's Crossing and Princeton, Indiana; that No. 2, as he knew, was more than thirty minutes late at that time; that it was his duty to deliver the meeting order first to the train having the right of way, but that he delivered said order to train No. 2, and did not notify those in charge of train No. 1 thereof, by reason of which the two trains, one running at forty and one at sixty miles an hour, met in a head-on collision in which plaintiff suffered the injuries complained of; that the act of the train dispatcher in causing said trains to meet was wilfully and purposely done; that the telegraph operator at Brown's Crossing knew that No. 2 was running past the scheduled place of meeting before No. 1 reached his said station; that it was his duty to notify the persons in charge of No. 1 of such fact, and to hold said train at said station, but that he set the semaphore to show a clear track, and told the conductor of the train that everything was all right for said train to proceed; that it was the duty of said operator to report to Mt. Carmel, Illinois, the passage of train No. 1, but that he wilfully and purposely violated the rule requiring him to make such report; that he wilfully and purposely signaled said train, and gave the information to the conductor aforesaid; that it was the duty, under the rules of the company, of said Beatty and Buchanan, in charge of train No. 1, to wait three minutes at Belmont, the original meeting place, and three minutes at Maud Station, a station seven and two-tenths miles distant from Brown's Crossing, but that they wilfully and purposely ignored said rule, and the collision took place one-half mile east of Maud Station. This paragraph of complaint covers sixteen printed pages of appellant's brief, and the sypnosis herein made is, as before stated, necessarily incomplete.

A wilful injury involves a deliberate purpose not to discharge some duty necessary to the safety of a person or property of another, which duty the person owing it has assumed by contract, or which is imposed upon him by operation of law. 1 Thompson, Negligence (2d ed.), § 20; Terre Haute, etc., R. Co. v. Graham (1884), 95 Ind. 286, 48 Am. Rep. 719. It is differentiated from negligence, by the fact that the latter arises from inattention or thoughtlessness, while the former cannot exist without purpose or design. Pittsburgh, etc., R. Co. v. Ferrell (1907), 39 Ind.App. 515, 78 N.E. 988, and authorities cited on page 534.

The complaint, to be sufficient, must charge that the injurious act was purposely and intentionally committed. As a matter of principle this should be sufficient; but it was first stated in Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 14 N.E. 228, that it is "necessary to charge in a complaint which seeks redress for a wilful injury, that the injurious act was purposely and intentionally committed with the intent wilfully and purposely to inflict the injury complained of." The cases have quite uniformly adopted the rule before stated, and as a matter of pleading it may be regarded as "established law" that the complaint should contain such averment. Pittsburgh, etc., R. Co. v. Ferrell, supra, and cases cited on page 529. Whatever confusion has arisen with regard to the subject is attributable to a failure to differentiate between the formal averment necessary to a charge of wilful injury, and the facts by which such averment may be supported.

It is important to understand what is meant in the use of the words "wilful," or "wilfully," as used in the complaint. It is "the quality of being wilful; obstinacy; stubbornness; perverseness; voluntariness." dull v. Cleveland, etc., R. Co. (1899), 21 Ind.App. 571. It was said in In re Young & Harston's Contract (1885), 31 Ch. Div. 168, that wilful "is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning, it generally, as used in courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used, is a free agent, and that what has been done arises from the spontaneous action of his will. It amounts to nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent." We quote the following from Fuller v. Chicago, etc., R. Co. (1871), 31 Iowa 187: "It is said by defendant's counsel that the word 'wilfully' implies the idea of malice of a mild kind, an evil intent without excuse. Such may be its meaning in indictments and criminal statutes. But it is not to be so understood here. The word means 'obstinately, stubbornly; with design; with a set purpose,' and this definition must be applied to it where it occurs in the statute under consideration." Pittsburgh, etc., R. Co. v. Ferrell, supra, pages 525, 526; Bishop, Crim. Law (3d ed.), 420.

Proof that a wrong act was purposely done charges the doer with the intention to produce the natural consequences of such act. This doctrine is most frequently invoked in criminal law.

"Every act producing an unintended result must, when evil, be measured either by the intent or the result. The common-law rule measures it substantially by the latter, holding the person guilty of the thing done where there is any kind of legal wrong in the intent, the same as though specifically intended." Bishop, Crim. Law (3d ed.), 411.

"The evil of the intent and the evil of the act added together constitute the evil punished as crime. The only peculiarity of the doctrine is in its teaching that the intent and act which constitute the sum need not be the natural or usual accompaniment of each other provided they did not in fact accompany each other in the particular case." Bishop, Crim. Law (3d ed.), 414.

The supreme court of Massachusetts, applying this doctrine in a civil suit for personal injury averred to have been wilfully caused, said in Aiken v. Holyoke St. R. Co. (1903), 184 Mass. 269, 68 N.E. 238: "The law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger it holds him to have intended the natural consequences of his act, and treats him as guilty of a wilful and intentional wrong. It is no defense to a charge of manslaughter for the defendant to show that, while grossly reckless, he did not actually intend to cause the death of his victim. In these cases of personal injury there is a constructive intention as to the consequences, which, entering into the wilful, intentional act, the law imputes...