Cleveland, C., C. & St. L. Ry. Co. v. Starks

• Decision Date: 24 June 1913
• Docket Number: No. 7,908.,7,908.
• Citation: 102 N.E. 279
• Court: Indiana Appellate Court
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. STARKS.

102 N.E. 279

CLEVELAND, C., C. & ST. L. RY. CO.

v.STARKS.

No. 7,908.

Appellate Court of Indiana, Division No. 2.

June 24, 1913.

Appeal from Circuit Court, Ripley County; F. M. Thompson, Judge.

Action by Mary A. Starks, administratrix, against the Cleveland, Cincinnati, Chicago & St. Louis Railway Company. Judgment for the plaintiff, and defendant appeals. Reversed and remanded.L. J. Hackney, of Cincinnati, F. L. Littleton, of Indianapolis, J. O. Cravens, of Versailles, and T. S. Cravens, of Lawrenceburg, for appellant. Thomas L. Creath, of Versailles, and J. K. Ewing and Frank Hamilton, both of Greensburg, for appellee.

ADAMS, C. J.

This is the second appeal taken in this case. In an appeal taken from a former judgment rendered in favor of appellee, the judgment was reversed on an erroneous instruction and a new trial ordered. Cleveland, etc., R. Co. v. Starks, 174 Ind. 345, 92 N. E. 54. On the second trial appellee again recovered judgment, from which this appeal is taken. The cause was submitted to a jury on issues of fact formed by a general denial to the second, third, and fourth paragraphs of complaint charging appellant with negligently causing the death of appellee's intestate, and a fifth paragraph charging appellant with willfully causing the death of said intestate. The court overruled demurrers addressed to each paragraph, and errors are separately assigned on the overruling of appellant's demurrers to the fourth and fifth paragraphs of complaint and on the overruling of appellant's motion for a new trial.

[1] Considering these paragraphs in their inverse order, appellant insists that the fifth paragraph does not state facts sufficient to constitute a cause of action for the willful killing of appellee's intestate, and that the court on the former appeal clearly indicated that said paragraph was insufficient. We do not so understand the opinion of the court delivered in that case.

The court held that the definition of “willful injury” given by the trial court in an instruction to the jury was inaccurate. This definition was that: “To constitute willful injury or death, the act which produced such injury or death must have been intentional or must have been done under such circumstances as evinced a reckless disregard for the safety of others and a willingness to inflict or bring about the injury or death complained of.” The court on appeal said: “This definition is incomplete, inaccurate, and misleading so far as it relates to this case. The charge of willfulness, as made in the fifth paragraph of the complaint, is built up by allegation of circumstantial facts rather than by direct averment. The question of its sufficiency has been waived, as heretofore shown, but it is proper in this connection to say that negligence cannot be of such a degree as to become willfulness, and no purpose or design can be said to exist where the injurious act is merely negligent. That part of the instruction before quoted appears to have been taken verbatim from the reasoning of the court in the case of Louisville, etc., R. Co. v. Bryan (1886) 107 Ind. 51 . The language quoted was not intended by the court to be an exact and complete definition of a willful injury, applicable under any circumstances to all cases, but was merely a part of the argument adduced to show the insufficiency of the charge of willfulness in that case. The effect of the instruction under consideration was to direct the jury that the charge of willfulness was established if the act which produced decedent's death was intentional. The act on appellant's part which caused such death was the running of its train over the crossing. This was assuredly an intentional but not an unlawful act. It was not enough, therefore, to charge that that willfulness consisted merely in showing that the act producing the death in question was intentional. It must be made to appear that the act or omission which caused the death was willful or intentional and of such a character that such death must reasonably have been anticipated as the natural and probable consequence of the act; that is, decedent was in a position of imminentperil and unconscious thereof, or unable to extricate himself therefrom, and that the engineer in charge of the train had knowledge of such facts and power and opportunity to stop the train or avoid the collision, but intentionally omitted to do so, and with such knowledge, power, and opportunity willfully ran such train over the crossing in utter disregard of consequences”-citing cases. These observations of the court clearly refer to the instruction and not to the fifth paragraph of complaint, which charges that when appellant's train was 400 feet east of the crossing, and when decedent was 25 feet north thereof and driving in the direction of the crossing at a slow walk, with top and side curtains of his buggy up, the engineer in charge of said train saw intestate driving on the railroad track and did nothing to warn him of the impending danger, did not in any manner attempt to stop or check the speed of the train when he saw plaintiff's intestate driving to and on said crossing, and that said engineer, seeing and fully comprehending intestate's perilous position, purposely, willfully, and without regard for the rights of said decedent caused said locomotive engine to run upon and strike the buggy in which decedent was then riding, throwing him to the ground with great violence and killing him.

We think the fifth paragraph of...