Conner v. Citizens' St. R. Co.

• Decision Date: 17 December 1896
• Citation: 45 N.E. 662,146 Ind. 430
• Parties: CONNER v. CITIZENS' ST. R. CO.
• Court: Indiana Supreme Court

146 Ind. 430

45 N.E. 662

CONNER

v.CITIZENS' ST. R. CO.

Supreme Court of Indiana.

Dec. 17, 1896.

Appeal from superior court, Marion county; L. M. Harvey, Judge.

Action by Thomas H. Conner against the Citizens' Street-Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

T. E. Johnson, for appellant. Mason & Latta, for appellee.

McCABE, J.

The appellant sued the appellee to recover damages for personal injuries alleged to have been inflicted on appellant through the negligence of the appellee, as charged in some of the paragraphs of the complaint, and purposely inflicted, as also charged in the third paragraph claiming $12,000 damages. The issues joined were tried by a jury, resulting in a verdict for the defendant, upon which the court rendered judgment, overruling appellant's motion for a new trial. The only error assigned calls in question the action of the trial court in overruling appellant's motion for a new trial. The giving and refusing of certain instructions are specified as grounds for the motion for a new trial.

The first instruction complained of is No. 1, given by the court on its own motion. It told the jury that “the complaint in this case is in three paragraphs. The third paragraph, which charges a willful injury, is not supported by the evidence, and you are therefore instructed not to consider the third paragraph of the complaint.” It is insisted that this was error, because it is claimed that the evidence was sufficient to warrant the jury in drawing the inference that the appellant's injury was purposely and willfully committed. The appellant's testimony shows that he was a passenger on appellee's street car, being drawn by mules, and that he had paid his fare and the fare of his friend, Mr. Beck, -10 cents; that he signaled the driver, there being no conductor, to stop at a certain point, where he and his companion desired to get off; that the car slowed up, and he and Mr. Beck went out onto the platform to get off, and Mr. Beck stepped off, though the car had not come to a full stop; that, before appellant had reached the platform, Beck had got off. Appellant testifies that he got himself ready to step off, but the car did not come to a standstill; it kept moving very slow, though he thought every instant it would stop, but, instead, the driver struck the mules, and surged it forward; and he said, “I lost my balance, and fell.” There is no evidence that the driver knew that appellant had not got off at the time he struck the mules, and started the car faster. It may be justly said that it was the driver's duty to know whether the passenger had got off in safety before starting up the car faster. Indeed, it was his duty to stop the car at the proper place long enough for passengers desiring to do so to alight in safety. Such failures and omissions, however, are nothing more than negligence, unless there was some evidence of knowledge on the part of the driver at the time of striking the mules, and starting up the car, that appellant had not got off the car.

The rule applicable here was stated by Mitchell, J., speaking for the court, in Gregory v. Railroad Co., 112 Ind., at page 387, 14 N. E. 229, thus: “As a rule of evidence, the presumption that every person intends the natural and probable consequence of his wrongful or unlawful acts applies as well in civil as in criminal cases; hence the unlawful intent may be shown by direct evidence, or it may be inferred from conduct which shows a reckless disregard of consequences, and a willingness to inflict injury, by purposely and voluntarily doing an act with knowledge that some one is unconsciously or unavoidably in a situation to be injured thereby. An act which in itself might be lawful becomes unlawful when done in a manner or under circumstances which charge the actor with knowledge that it will result in injury to some one. [Citing Palmer v. Railroad Co., 112 Ind. 250, 14 N. E. 70;Railway Co. v. Ader, 110 Ind. 376, 11 N. E. 437;Railway Co. v. Bryan, 107 Ind. 51, 7 N. E. 807;Stock-Yard Co. v. Mann, 107 Ind. 89, 7 N. E. 893;Pennsylvania Co. v. Smith, 98 Ind. 42.] *** The right of the court to direct a verdict for the defendant in case the plaintiff's evidence, giving it the most favorable construction it will legitimately bear, fails to establish any fact which constitutes an essential element in his right of action is clear. [Citing authority.] The rule which governs in such cases is substantially that which controls where there is a demurrer to the evidence. If all the plaintiff's evidence, with all the legitimate inferences which a jury might reasonably draw from it, is insufficient to sustain a verdict in his favor, so that a verdict for the plaintiff, if one should be returned, would be set aside, the court may properly direct a verdict for the defendant without submitting the evidence to the jury.” That is practically what the instruction in question did. It amounted to directing the jury to find for the defendant as to the third paragraph of the complaint. Palmer v. Railroad Co., 112 Ind. 250, 14 N. E. 70, was a case where a deaf person was walking on the railroad track of the appellee in that case, and his father, who saw the passenger train coming behind his son, ran ahead of the train, waving his hat at his deaf son, and making signals to him to get off the track. But the deaf son's face was not turned, and he failed to see his father or the signals or the train running towards him from the rear. The train ran over and killed him. The engineer in charge of the engine testified that he saw both men, but did not see the father making signals to his son, and did not know that the son or the foremost man was deaf. This evidence was not contradicted, the father testifying that he did not know whether the engineer saw the signals or not. It is there said, on page 260, 112 Ind., and page 75, 14 N. E., that “the fact that signals indicating peril are given and are seen by the engineer plainly distinguishes the case from the class of cases represented by Railroad Co. v. Graham, 95 Ind. 286. Proceeding in defiance of such signals creates the constructive intention of which our cases speak, and makes the conduct of the wrongdoer willful. Such an act is not simply negligence; it is a wrong, implying a willingness to inflict the injury. While we agree with appellant's counsel upon the legal proposition as we have stated it, we cannot agree in their inference of fact, for we cannot assent to the conclusion that a jury might have inferred that the engineer saw the signals given by the father of the deceased.” And so, here, we do not think that the jury could reasonably and logically draw the conclusion from the evidence above set forth that the street-car driver knew when he started up the car, by striking the mules with his whip, that the appellant had not yet got off the car, and was in a situation making it dangerous to appellant to so start up the car by striking the mules with his whip. To the same effect are Railway Co. v. Ader, supra; Railway Co. v. Bryan, supra; Stock-Yard Co. v. Mann, supra; Pennsylvania Co. v. Smith, supra; Railroad Co. v. Willoeby, 134 Ind. 563, 33 N. E. 627;Railway Co. v. Hunter, 33 Ind. 335.

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 reasonableconsequence would be to produce injury to others, the actor having knowledge of the situation of those others. There must have been an actual or constructive intent to commit the injury. A constructive intent may be established by evidence showing a reckless disregard for the safety of others, and a willingness to inflict the injury complained of. Such action is willfulness. But willfulness implies knowledge on the part of the actor. Parker v. Pennsylvania Co., 134 Ind. 673, 34 N. E. 504;Evans v. Railway Co., 142 Ind. 264, 41 N. E. 537. It is not necessary, however, to show the intention, either actual or constructive, to commit the particular injury which resulted. It is enough to show that some injury to another or others would naturally and probably result from the act complained of. Here the evidence most favorable to appellant shows that he rang the bell, signaling the driver to stop the car at a given point; that the driver accordingly slowed up the car until it was going very slow, so that Mr. Beck alighted from the car without any difficulty before the appellant got onto the platform. There is no evidence that the driver knew that appellant also wished to get off, nor was there any evidence that the driver knew that appellant paid both fares, there being no conductor; and the 10 cents, the two fares, having been put in the box provided for its reception, there was nothing to indicate to the driver that both men wished to get off at the same place. There was no evidence to show that the driver knew that appellant was out on the platform about to get off when he struck the mules with his whip, and started up the car. As before observed, it was his duty to know it, but his failure to observe the appellant's motions, he being 80 years old, may have been negligence, but did not indicate a willingness to inflict an injury upon the appellant. There could be no willfulness on the part of the driver unless he knew the situation of the appellant when he did the act complained of. Nor could the jury legitimately draw the inference from the evidence recited that he did know such fact. Because it was his duty to know the fact affords no just ground for the jury to infer that he did know it. Therefore the trial court did not err in withdrawing the third paragraph from the consideration of the jury.

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