Gregory v. Cleveland

• Decision Date: 29 November 1887
• Citation: Gregory v. Cleveland , 112 Ind. 385, 14 N.E. 228 (Ind. 1887)
• Court: Indiana Supreme Court
• Parties: Gregory, Adm'r, etc., v. Cleveland, C., C. & I. R. Co.

112 Ind. 385

14 N.E. 228

Gregory, Adm'r, etc.,

v.Cleveland, C., C. & I. R. Co.

Supreme Court of Indiana.

November 29, 1887.

Appeal from superior court, Marion county; D. W. Howe, N. B. Taylor, and L. C. Walker, Judges.

J. W. Gordan, R. N. Lamb, and A. L. Mason, for appellant.Harris & Calkins, for appellee.

Mitchell, C. J.

Joseph W. Gregory, as administrator of the estate of Ida M. Sennett, deceased, brought this action against the Cleveland, Columbus, Cincinnati & Indianapolis Railroad Company, to recover damages for wrongfully causing the death of his intestate.The first paragraph of the complaint charges, in substance, that the railway company, on the thirteenth day of February, 1882, within the city of Indianapolis, “did so manage, control, and operate her said trains, recklessly, with gross negligence, without regard to consequences, and with fatal and inexcusable heedlessness, as to run one of her said trains upon plaintiff's decedent with great force,” whereby the said decedent was killed without any fault on her part.The second paragraph charges that the railway company, on the date mentioned, operated its trains “with such gross negligence, recklessness, and inexcusable disregard of consequences, and willful misconduct, as to negligently, wantonly, and willfully cause or allow the tender attached to one of its trains to strike the person of said decedent with great force and fatal violence;” thereby causing her death.The second paragraph contained no averment that the decedent was without fault.In neither of the foregoing paragraphs is it charged that the decedent was either purposely, intentionally, or willfully run upon and killed or injured by the railway company, or its servants, nor does either of them state facts from which such an inference can be drawn.It is only necessary to charge, in a complaint which seeks redress for a willful injury, that the injurious act was purposely and intentionally committed; with the intent willfully and purposely to inflict the injury complained of.As a rule of evidence, the presumption that every person intends the natural and probable consequences 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 charges the actor with knowledge that it will result in injuring some one.Palmer v. Railroad, ante, 70, (present term;)Railway Co. v. Ader, 110 Ind. 376, 11 N. E. Rep. 437;Railway Co. v. Bryan, 107 Ind. 51, 7 N. E. Rep. 807;Railroad Co. v. Mann, 107 Ind. 89, 7 N. E. Rep. 893;Pennsylvania Co. v. Smith, 98 Ind. 42.

As was in effect said in Railway Co. v. Bryan, supra, there is a clear distinction between cases which count upon negligence as a ground for action and those which are founded upon acts of aggressive wrong or willfulness; and a pleading should not be tolerated which proceeds upon the idea that it may be good either for a willful injury, or as a complaint for an injury occasioned by negligence.It should proceed upon one theory or the other, and is to be judged from its general tenor and scope.Railway Co. v. Schmidt, 106 Ind. 73, 5 N. E. Rep. 684;Mescall v. Tully, 91 Ind. 96;Platter v. City of Seymour, 86 Ind. 323.

That the complaint under consideration abounds in vituperative epithets, and that some detached phrases, alleging willful misconduct, are thrown in, does not supply the necessary averment that the injury was purposely or intentionally inflicted.“The averments as to the manner and cause of the injury are specific, and they do not sustain the conclusions embodied in the epithets, but clearly indicate that there was no willful or intentional wrong.”Railway Co. v. Schmidt, supra.At the conclusion of the evidence, after hearing the argument of counsel, the learned judge before whom the case was tried directed the jury to return a verdict for the defendant.A verdict was returned accordingly.The right of the court to direct a verdict for the defendant, in case the plaintiff's evidence, giving it the most...