Lake Erie And Western Railroad Co. v. Brafford

• Decision Date: 16 April 1896
• Docket Number: 1,758
• Parties: LAKE ERIE AND WESTERN RAILROAD CO. v. BRAFFORD, ADMINISTRATOR
• Court: Indiana Appellate Court

43 N.E. 882

15 Ind.App. 655

LAKE ERIE AND WESTERN RAILROAD CO. v. BRAFFORD, ADMINISTRATOR

No. 1,758

Court of Appeals of Indiana

April 16, 1896

From the Clinton Circuit Court.

Judgment affirmed.

W. E Hackedorn, J. B. Cockrum, and Bayless, Guenther & Clark for appellant.

Brumbaugh & Combs, for appellee.

GAVIN C. J. Ross, J., absent. REINHARD, J., dissents.

OPINION

GAVIN, C. J.

The sufficiency of the evidence to sustain the general verdict in favor of appellee is properly presented for our determination.

There is evidence to support the following state of facts:

At the time of the accident, upon August 27, 1893, appellant's railroad ran through Frankfort, a city of 8,000 people, along Ohio street, a public highway, passing through the central portion of the city. Appellee's decedent, who was a deaf mute, twenty-four years old, entered upon the track early Sunday morning, and walked thereon some distance west until at a point about seventy feet east of Jackson street he was struck by appellant's west-bound train, an extra, consisting of a caboose, tender, and engine, the latter running backwards. Ohio street runs east and west, Jackson north and south. The following plat will aid to a proper understanding of the situation:

[SEE DIAGRAM IN ORIGINAL]

Down Prairie street runs a creek, over which appellant has a trestle, or bridge, 238 feet long. Between Jackson and Clay streets appellant's track and that of the Clover Leaf Company are laid upon an embankment, twelve to eighteen feet high, which occupies the entire street. On top of this embankment there is no roadway, but there are convenient footways. The track is level and straight from the place of the accident to the east end of the bridge, and straight and nearly level from thence east to a point 180 feet beyond the corporation line, where the road begins to curve, and where a west-going train first becomes visible from Jackson street, this point being over 2,200 feet east of the bridge. Between Clay and Jackson streets there are two or three buildings on Ohio street. East of Clay there are numerous houses fronting on Ohio street. Ohio street, between Jackson and Clay, has been, for twenty years past, regularly traveled by footmen. There was no other bridge on Ohio across the creek than the railroad bridge which had upon them no foot-walk.

About 5:30 a. m., decedent entered Ohio street, east of the trestle. At the east end of the trestle he entered upon appellant's track and walked briskly westward on the track until he reached a point about ten feet west of the switch stand, and about 147 feet from the west end of the trestle; there the train caught him.

The engine was a mogul engine in good repair, with Westinghouse air-brakes in proper working order. From the time it reached the corporation line until it passed the switch stand, the train was running twenty-five miles per hour. Beyond the curve, the station whistles were blown. Before reaching the trestle, whistles were blown twice for different street crossings. These whistles could all be distinctly heard west of Jackson street. The bell was rung from the corporation line on. The engineer says he saw the man from the time the engine rounded the curve, and kept him in view until he was struck, and that decedent just walked straight ahead without ever turning or looking around; that he gave the danger signal when about forty feet from the man, and immediately reversed his engine and applied the brakes, but was then upon him. He says he supposed the man would step off, and knew nothing of his infirmities, and did not intend to kill him. He states: "I was watching him all the time, from the time I saw him until I hit him, expecting him to get off, yes, sir. The way he was walking I supposed he was going to try to get to the crossing and get off, until, after I saw he wasn't making any effort to get off, I whistled."

He also states that he had the train under control and it was going about eight miles per hour; that the rails were damp from fog, which prevented the train from stopping as quickly as it otherwise would have done. After striking decedent, the engine passed over a distance of at least 200 to 225 feet before stopping. If, going at the rate of four to six miles an hour the train should have been stopped within ten or fifteen feet; at thirty miles, it should stop within 200. A city ordinance forbade the running of trains at more than four miles per hour.

One Brooks testified that he was on the embankment, a little west of Jackson street, on the Clover Leaf track, and heard the danger signal; that the train was then at the east end of the trestle; that he waved his arms at decedent and shouted, the latter being then four or five feet east of the switch stand.

Another man, Starkey, was walking east on appellant's track, and when near Main street, having seen the train approaching, and deceased apparently paying no heed, waved his arms in the air and motioned to him, but he either did not see, or did not understand.

The engineer does not deny having seen these men thus waving their arms. He is silent as to them. Starkey says the danger signals were given while the train was on the bridge, but that the engine was not reversed until just about as he struck him.

Two paragraphs of complaint charged a negligent and one a willful killing. If the evidence sustains the latter, we need not consider the others. In deciding this question, appellee is entitled to require that we take that view of the evidence most favorable to him. This requires us, not only to regard, in the most favorable light, those facts as to which there may be conflict, but also all inferences which may be legitimately drawn therefrom in his behalf.

Counsel for appellant urge, first, that the engineer did everything that could have been done to avoid and prevent the accident; secondly, that in any event he was only negligent, and that appellee's decedent was also guilty of contributory negligence.

If the injury was willfully inflicted, then it is conceded contributory negligence is no defense. Cooley on Torts, 674; Beach Cont. Neg., 53.

The law is well established in Indiana, as in many other jurisdictions, that a direct and positive intent is not always requisite to constitute a willful act.

In Pennsylvania Co. v. Sinclair, 62 Ind. 301, it was said: "Where an intention to commit the injury exists, whether that intention be actual or constructive only, the wrongful act ceases to be a merely negligent injury, and becomes one of violence or aggression."

"As a matter of evidence, proof that the misconduct of the defendant was such as to evince an utter disregard of consequences, so as to imply a willingness to inflict the injury complained of, may tend to establish willfulness upon the part of the defendant; but to authorize a recovery on such evidence, there must be suitable allegations in the complaint to which it was applicable."

In the case in hand there were such allegations and just such evidence.

"To constitute a willful injury, the act which produced 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." Louisville, etc., R. W. Co. v. Bryan, 107 Ind. 51, 7 N.E. 807.

In another case the following declarations of the law are made:

"It is our judgment that there may be a willful act, in a legal sense, without a formed and direct intention to kill or wound any particular person. There may, in other words, be a conclusive or implied intent without an express one. * * * The authorities, from the earliest years of the common law, recognize the rule that there may be a willful wrong without a direct design to do harm. * * * Or, to take another illustration, suppose an engineer sees two men on the track, and sees one of them making signals to the other to leave it, would it not be willfulness to run upon the man to whom the signals were made, without any effort to check the train? * * * We agree with appellant's counsel, that if two men are seen on a track in front of the train, and one of them risks his safety in the effort to signal the foremost man to leave the track, the engineer who sees the signal is guilty of a willful wrong if he does not use ordinary care to stop the train. Pushing on in utter disregard of such warning signals is something more than negligence; it is willfulness; it passes beyond a mere omission of duty, and becomes a positive wrong." Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250, 14 N.E. 70.

"Recklessness, reaching in degree to an utter disregard of consequences, may supply the place of a specific intent." Cincinnati, etc., R. R. Co. v. Cooper, 120 Ind. 469, 22 N.E. 340.

"If appellant's servants knew that the decedent was unconscious of the impending danger in time to have avoided it, and, without regard to the consequences, made no effort to avoid it, such conduct would virtually imply a willingness or willfulness." Pittsburgh, etc., R. W. Co. v. Judd, Admr., 10 Ind.App. 213, 36 N.E. 775.

The principle involved has also been expressly approved in Brannen v. Kokomo, etc., Grav. R. Co., 115 Ind. 115, 17 N.E. 202; Indiana, etc., R. W. Co. v. Wheeler, 115 Ind. 253, 17 N.E. 563; Chicago, etc., R. W. Co. v. Nash, 1 Ind.App. 298, 27 N.E. 564; Overton v. Indiana, etc., R. W. Co., 1 Ind.App. 436, 27 N.E. 651; Barr v. Chicago, etc., R. W. Co., 10 Ind.App. 433, 37 N.E. 814.

It is true, that the Supreme Court, in Parker, Admr., v Pennsylvania Co., 134 Ind. 63, recently said: "No purpose or design can be said to exist where the injurious act results from negligence, and negligence cannot be of such degree as to become willfulness." Ye...