Krenzer v. Pittsburgh, C., C. & St. L. Ry. Co.

Decision Date16 December 1898
Citation151 Ind. 587,52 N.E. 220
CourtIndiana Supreme Court

Petition for rehearing. Overruled.

For former opinion, see 43 N. E. 649.

McCabe, J., dissenting.

Beckett & Doan, Christian & Christian, and Smith & Korbly, for appellant. Sam'l O. Pickens, for appellee.


We have given careful consideration to the learned argument of counsel in support of the petition for a rehearing. Nothing said, however, has been sufficient to convince us that the rule heretofore enforced by this court in relation to contributory negligence in injury cases should not be maintained. There is no doubt, and never has been, that, if a person is injured by the act of another, the injured person will thereby have a right of action for damages, even though he was himself not free from fault, provided only the person injuring him knew of his condition, and could, with ordinary care, have avoided the injury complained of. In the recent case of Railway Co. v. Stick, 143 Ind. 449, 41 N. E. 365, it was said, citing Railway Co. v. Phillips, 112 Ind. 59, 13 N. E. 132: “If the employés see a man bound to the rails in time to check the train, they must use reasonable measures to check it, and not suffer it to run upon the helpless man.” This would be true, although the man had himself been wholly at fault, even so far as to have caused himself to be tied upon the track. So, it is said in Louisville & N. R. Co. v. East Tennessee, V. & G. Ry. Co., 9 C. C. A. 314, 60 Fed. 993, cited by appellant: “If, with a knowledge of what the plaintiff has done or is about to do, the defendant can, by ordinary care, avoid the injury likely to result therefrom, and does not, defendant's failure to avoid the injury is the last link in the chain of causes, and is, in law, the sole proximate cause. The plaintiff's conduct is not, then, a cause, but a condition, of the situation with respect to which the defendant has to act. The principle is established by a long series of cases,”-citing Davies v. Mann, 10 Mees. & W. 546, and many other cases. The statement so cited with approval in appellant's brief is quite consistent with the rule established in this state. If, “with knowledge” of the plaintiff's condition, whether that condition has been brought about by plaintiff's fault or not, defendant can, by ordinary care, prevent the threatened injury, he must do so, or become liable for the injury.

We think that counsel are perhaps right in calling in question the propriety of an attempted distinction made by a dictum in Pennsylvania Co. v. Sinclair, 62 Ind. 301, between what is there called the English doctrine, illustrated by the case of Davies v. Mann, supra, and the doctrine accepted in this state. We do not perceive any difference in principle between what are called the two doctrines, however difficult it may be to apply the accepted rules of the law of negligence to particular cases. In every case, one who has himself contributed to his own injury must suffer the consequences of his own want of due care, unless it should appear that the one injuring him knew of his condition in time to have avoided the injury, and could with ordinary care have avoided it. To knowingly injure another, when, with ordinary care, such injury could be avoided, is not, however, mere negligence, but rather willful wrongdoing, or, at least, such a wanton disregard of consequences as amounts to willfulness. In some cases, we readily admit, it may be hard to draw the line between simple negligence on the one side and willfulness or wantonness on the other. Carelessness may be so gross as scarcely to be distinguishable from wantonness, or from a willingness to do any act, no matter what the consequences. But, in principle, the injury suffered, if wrongful, must always be due either to a willingness to do wrong, or to a want of care to avoid such wrong. The act done is either positive or negative in its character; that is, either willful or negligent. Contributory negligence is not a sufficient answer as to willful wrongdoing, but it is as to simple negligence or want of ordinary care.

In the case before us, the injured boy, after playing upon the railroad crossing, sat upon the rail of the track, and there fell asleep, and was hurt by the passing train. It was between 7 and 8 o'clock of a summer evening, though still daylight. The engineer was at the time looking out ahead, but neither he nor any one else on the train saw the boy. It is not claimed that these facts show any willful injury on the part of the employés of appellee, or any wanton disregardof plaintiff's rights, though it is admitted that the employés were negligent in running the train faster than allowed by ordinance, and without ringing the bell or sounding the whistle. Here, then, is a case where the injured person was himself guilty of negligence contributing to his injury, and where the persons injuring him did not see him, although the engineer was looking out ahead, and did not, of course, know of his condition. Under these circumstances, even accepting the authority of the cases cited by appellant, there could be no recovery. No willful or even wanton injury is shown, and the contributory negligence of appellant is undoubted. In a note to Railroad Co. v. Humphreys (Tenn.) 15 Am. & Eng. R. Cas., at page 478, the rule in cases of this kind is, as we think, well stated. It is there said: The act of falling asleep or being drunk and incapable upon a railroad track is generally held to be such contributory negligence as will preclude recovery in case of accident,”-citing many cases, and adding: “It is, of course, to be understood that, when the servants of the company fail to exercise due care after becoming aware of the plaintiff's dangerous position, the company is liable, notwithstanding plaintiff's contributory negligence.” See, further, Railroad Co. v. Huffman, 28 Ind. 287;Wright v. Brown, 4 Ind. 95;Coal Co. v. Shaw, 16 Ind. App. 9, 44 N. E. 676; Railroad Co. v. Adams, 43 Ind. 402;Conner v. Railroad Co., 146 Ind. 430, 45 N. E. 662; Elliott, R. R. §§ 1251, 1257.

But it is said that as the injured party in this case was at the time but 7 1/2 years of age, and as a general verdict was returned in his favor, it follows conclusively that all the facts necessary to entitle him to judgment, including the fact as to his having sufficient capacity to comprehend and realize the danger incurred by him in sitting down to play upon the railroad track, were found for him by the jury, unless it should appear from answers to interrogatories that facts specially found were in irreconcilable conflict with such general verdict. There is no question that this is the law. It is, however, shown in the original opinion that such irreconcilable facts as to the capacity of the injured boy were found by the jury. The jury found specially that the boy was 7 1/2 years old; that he was “of usual and ordinary intelligence and judgment for his age,” and “of ordinary physical strength and activity for his age”; that he knew “that the track at the place where the accident happened was used to run cars and engines over”; that, just before he was hurt, he was playing jackstones upon the track, and sat “down upon the rail of the track with his feet between the rails,” and that, “while sitting there in that position, he fell asleep, and remained asleep until he was hurt”; that, when the engine struck him, he was “lying with one leg over the rail, body off north side of rail”; that “the plaintiff, when he sat down upon the track, had sufficient intelligence to know that the track was used to run cars over,” and “that engines and cars were liable to pass over said track”; and that, “at the time he sat down upon the track, he had sufficient intelligence to know that if he remained on the track, and an engine or car passed over it, he would be run over and injured.” The capacity of the plaintiff to comprehend the danger thus incurred by him, as so found by the jury, cannot be distinguished from the capacity of an adult in the same circumstances which would make such adult chargeable with contributory negligence. We think it absolutely clear that the negligent conduct of the plaintiff, and his full appreciation of the possible consequences of such conduct, as found by the jury, must make him, as well as any other person, chargeable with negligence contributing to his injury. There is therefore no room here for the application of the rule laid down in Railway Co. v. Grames, 136 Ind. 39, 34 N. E. 714, and like cases,-that, where it is uncertain whether the primary facts found show negligence, the jury are permitted and required to find as an ultimate fact whether the plaintiff has or has not exercised such care as an ordinarily prudent person would have exercised under the circumstances. The facts here found by the jury disclose beyond question that the plaintiff was guilty of conduct showing him to be chargeable with negligence contributing to his own injury, and that he was at the time possessed of sufficient intelligence to know and appreciate the danger thus incurred by him.

Neither can it be that the company could be liable under the circumstances as for willful wrongdoing, unless, indeed, those in charge of the train knew that the boy was upon the track. But here, again, the jury find expressly that the engineer was “looking out ahead of the engine at and before the time plaintiff was run over,” and also that neither “the engineer nor fireman nor any one on the engine saw the plaintiff before he was run over.” There was therefore no willful or wanton injury. Indeed, none is charged in the complaint. But, as already said, in order to charge the company with responsibility, there must have been either willfulness or wantonness on its part, or else negligence; and in the latter case the plaintiff must himself have been free from contributory negligence, which, as we have also...

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