Dull v. Cleveland, Cincinnati, Chicago And St. Louis Railway Company

• Citation: 52 N.E. 1013,21 Ind.App. 571
• Decision Date: 17 February 1899
• Docket Number: 2,669
• Parties: DULL v. CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY
• Court: Court of Appeals of Indiana

52 N.E. 1013

21 Ind.App. 571

DULL v. CLEVELAND, CINCINNATI, CHICAGO AND ST. LOUIS RAILWAY COMPANY

No. 2,669

Court of Appeals of Indiana

February 17, 1899

From the Delaware Circuit Court.

Affirmed.

J. N Templer, C. C. Ball and E. R. Templer for appellant.

B. K Elliott, W. F. Elliott, J. T. Dye and Ryan & Thompson for appellee.

WILEY, J. Robinson and Comstock, J. J., concur in the conclusion.

OPINION

WILEY, J.

Appellant sued appellee for the alleged negligent killing of his infant child. The complaint is in two paragraphs. In the first it is charged that appellee, on October 22, 1896, owned and operated a railroad passing through the city of Muncie; that appellant had a daughter, Vonnie Dull, seven years old, who on said day, without his knowledge, consent, or fault, left his residence, which was near appellee's line of road, and wandered onto appellee's track; that when she was on said track she was in plain view, and could have been seen from the east for a distance of three-quarters of a mile; that there is nothing in the way to obstruct the view of the engineer, fireman, or other employe of appellee riding on a locomotive traveling west from seeing said child upon said track had they looked, and, if they had so looked, they could have seen her in ample time to have stopped the train before striking her; that on said day appellee ran its locomotive and train of cars westward on its track, which train was about twenty minutes late arriving at Muncie; that coming into said city said train was running about sixty miles per hour; that as said train approached said child she was standing on the main track, looking north, waving a flag to an engineer on a Lake Erie & Western train, whose track runs parallel with appellee's and about forty feet to the north. That some of the employes on the Lake Erie & Western train saw said child, and seeing the danger she was in from appellee's train, tried to warn her, but failed in their purpose; that she was so young that she mistook their warnings as a salute to her; that she did not see the approach of appellee's train, or hear the danger signals sounded, until said train was so near, and going so fast, that she could not get off the track in time to avoid being struck; that appellee's engineer negligently failed to keep a lookout ahead, and negligently failed to see said child when he could have seen her, and thus avoid the injury; that said engineer did not slack the speed of the train upon seeing said child, "but simply contented himself with whistling the danger signals about 550 feet away from her;" that he wilfully and negligently allowed said train to rush on until it reached and struck said child; that, after so striking said child, the engineer for the first time applied the air brakes, and that the train then ran 250 feet before it could be stopped; that, if said train had been going at a lawful rate of speed, said accident could have been prevented, and said train stopped within fifty feet after said danger signals had been sounded; that by an ordinance of the city of Muncie, the running of trains within the corporate limits at a greater rate of speed than eight miles per hour was prohibited, and declared unlawful; that said train was being run at an unlawful rate of speed; that on account of the gross negligence, carelessness, and recklessness in so running said train at such unlawful rate of speed the employes in charge thereof were unable to control the same upon seeing said child, and that said child was wilfully, carelessly, and recklessly killed; that said injury resulted without any fault, negligence, or carelessness of the said child, or on the part of appellant.

The only material difference between the first and second paragraphs of complaint is that in the second it is charged that the engineer in charge of the locomotive did see appellant's child a distance of 600 feet before reaching it, and, after seeing her, he did not stop the train, or slacken its speed. The case was put at issue by an answer in general denial. Trial by a jury, and a special verdict returned under the law of 1895. Appellant and appellee each moved for judgment on the special verdict; that of appellant being overruled and that of appellee being sustained. Appellant's motion for a venire de novo and a new trial were respectively overruled.

Before proceeding to consider the special verdict, it is important that we first determine whether the complaint proceeds upon the theory of wilfulness, or merely that of negligence. As we must be guided by the complaint itself, and not by what counsel say about it, we must consider its averments, and in doing this we must keep in view the marked distinction between the terms "wilfulness" and "negligence." The meaning of wilfulness, as given by Webster, is: "The quality of being wilful; obstinacy, stubbornness; perverseness; voluntariness. " The supreme court of judicature of England has defined the word wilful as follows: "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." In re Young, L. R. 31 Ch. Div. 168; State v. Clark, 29 N.J.L. 96; Highway Commissions v. Ely, 54 Mich. 173, 19 N.W. 940; Newell v. Whitingham, 58 Vt. 341, 2 A. 172. In Fuller v. Chicago, etc., R. Co., 31 Iowa 187, it is said: "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." In Texas it was said: "A wilful act is one committed with an evil intent." Bowers v. State, 24 Tex. Ct. App. 542, 7 S.W. 247. There is a marked distinction between the words 'wilful' and 'reckless,' and recklessness does not necessarily imply wilfulness. A grossly careless act may be characterized as reckless, and serious consequences may result from it. Yet such consequences would not necessarily be wilfully brought about.

The complaint must be construed upon the theory which is most apparent and clearly outlined by the facts stated therein. Pittsburgh, etc., R. Co. v. Sullivan, 141 Ind. 83, 27 L. R A. 840, 40 N.E. 138; Jones v. Cullen, 142 Ind. 335, 40 N.E. 124; Batman v. Snoddy, 132 Ind. 480, 32 N.E. 327. As was said by Comstock, J., in Cleveland, etc., R. Co. v. Dugan, 18 Ind.App. 435, 48 N.E. 238: "As only one theory can be contained in a single paragraph, the court must construe the pleading most strongly against the pleader, and determine the theory from the prominent or leading allegations of the pleading." As has been held in many cases, there is no such thing in law as wilful negligence, and the complaint must proceed upon either wilfulness or negligence, and cannot charge both; that is, they cannot be charged in one and the same paragraph. Belt, etc., R. Co. v. Mann, 107 Ind. 89, 7 N.E. 893; Pennsylvania Co. v. Sinclair, Adm., 62 Ind. 301; Highland Ave., etc., R. Co. v. Winn, 93 Ala. 306, 9 So. 509; Verner v. Alabama, etc., R. Co., 103 Ala. 574, 15 So. 872. In Louisville, etc., R. Co. v. Bryan, 107 Ind. 51, 7 N.E. 807, appellee sued to recover damages for the alleged killing of his team at a crossing. One paragraph was based upon negligence merely, with the necessary averment that he was without fault. In the other he attempted to plead facts constituting wilfulness. The charging part of the latter paragraph was as follows: "And that said collision was caused by the reckless, negligent, and wilful 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; * * * 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, etc." In that case Mitchell, J., said: "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 wilful 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. * * * To constitute a wilful injury, the act which produces it 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 the injury complained of. It involves conduct which is quasi criminal." Citing, Louisville, etc., Canal Co. v. Murphy, 9 Bush 522; Louisville, etc., R. Co. v. Filbern, 6 Bush 574; Peoria Bridge Assn. v. Loomis, 20 Ill. 235. In the case from which we have just...