Indianapolis St. Ry. Co. v. Taylor

• Decision Date: 02 April 1902
• Citation: 158 Ind. 274,63 N.E. 456
• Parties: INDIANAPOLIS ST. RY. CO. v. TAYLOR.
• Court: Indiana Supreme Court

158 Ind. 274

63 N.E. 456

INDIANAPOLIS ST. RY. CO.

v.TAYLOR.¹

Supreme Court of Indiana.

April 2, 1902.

Appeal from circuit court, Shelby county; Douglas Morris, Judge.

Action by Charles E. Taylor against the Indianapolis Street Railway Company. From a judgment for plaintiff, defendant appeals. Reversed.

F. Winter, Hord & Adams, and W. H. Latta, for appellant. Wm. V. Rooker, for appellee.

MONKS, J.

This action was brought by appellee to recover damages for personal injuries. On November 11, 1899, appellant's railway had a double track on Illinois street, in the city of Indianapolis. The west track was used by the south-bound cars, and the east track by the north-bound cars. In the evening of that day, after dark, appellee was riding a bicycle on Vermont street, in said city, going eastward across Illinois street, and was struck by a south-bound car when crossing said west track, and carried some distance on Illinois street by the fender on said car. The first and second paragraphs of complaint are predicated upon the alleged negligence of appellant. The third paragraph charges willful injury.

The only error assigned and not waived calls in question the action of the court in overruling appellant's motion for a new trial. At the request of appellee, the court gave to the jury the following instruction: “If the defendant's motorman, in charge of the car complained of, knew of the plaintiff's peril, and that plaintiff was beneath said car, and helpless, and said servant knew that he could stop said car in time to prevent the infliction upon the plaintiff of any of the injury he received, if he received any, and the servant, with such knowledge, did not stop the car, then the defendant is liable to the plaintiff for all the injury received by him, if any, after the car could have been stopped, but was not.” The giving of this instruction was assigned as cause for a new trial. It is alleged in the first and second paragraphs that appellant negligently ran its street car against “appellee with great force and violence, and that he was caught by and under the fender and dragged a great distance,” etc. It is not alleged in either of said paragraphs that appellant had any knowledge that appellee was under said fender, and with such knowledge failed to exercise ordinary care to stop said car, so as to bring either of said paragraphs within the rule declared in Railroad Co. v. Klee, 154 Ind. 434, 435, 56 N. E. 234. Said instruction did not, therefore, state the law applicable to either of said paragraphs. The third paragraph of complaint charges that appellant willfully and maliciously ran its car against appellee and hurled him with great force and violence upon the roadway, and that he and his bicycle became entangled with and under the fender in front of said car, and that appellant's motorman, after he knew of appellee's “perilous and helpless condition and circumstances, willfully, with intent to destroy appellant's life, continued to operate said car at a high rate of speed, for a distance of 300 feet, during all of which distance appellee was dragged along said street and under the fender of said car.” This paragraph charges a willful injury.

When the injury is willfully inflicted, the contributory negligence of the injured party is not a defense. In such case the complaint should allege that the injurious act was purposely and intentionally committed, with the intent willfully and purposely to inflict the injury complained of. “To constitute a willful injury, the act which produced it must have been intentional, or must have been done under such circumstances as evidenced a reckless disregard for the safety of others, and a willingness to inflict the injury complained of. It involves conduct which is quasi criminal.” Railroad Co. v. Bryan, 107 Ind. 51, 53, 7 N. E. 807, 808; Railroad Co. v. Miller, 149 Ind. 490, 499-501, 49 N. E. 445;Conner v. Railroad Co., 146 Ind. 430, 439, 45 N. E. 662;Palmer v. Railroad Co., 112 Ind. 250, 14 N. E. 70;Parker v. Pennsylvania Co., 134 Ind. 673, 677, 678, 34 N. E. 504, 23 L. R. A. 552, and cases cited. It was said in Gregory v. Railroad Co., 112 Ind. 385, 387, 14 N. E. 228, 229: “As a rule of evidence, the presumption that every person intends the natural and probable consequences of his wrongful and 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. Palmer v. Railroad Co., 112 Ind. 250, 14 N. E. 70; Railroad Co. v. Ader, 110 Ind. 376, 11 N. E. 437; Railroad Co. v. Bryan, 107 Ind. 51, 7 N. E. 807;Stock Yards Co. v. Mann, 107 Ind 89, 7 N. E. 893;Pennsylvania Co. v. Smith, 98 Ind. 42.” It follows that, if the conduct of the motorman, after he became aware of appellee's dangerous and helpless condition, was not such that an intent to inflict the injury upon appellee might properly be inferred...