Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company v. Ferrell

• Decision Date: 26 October 1906
• Docket Number: 5,553
• Citation: Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company v. Ferrell, 78 N.E. 988, 39 Ind.App. 515 (Ind. App. 1906)
• Court: Indiana Appellate Court
• Parties: PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILROAD COMPANY v. FERRELL, BY NEXT FRIEND

78 N.E. 988

39 Ind.App. 515

PITTSBURGH, CINCINNATI, CHICAGO & ST. LOUIS RAILROAD COMPANY v. FERRELL, BY NEXT FRIEND

No. 5,553

Court of Appeals of Indiana

October 26, 1906

Rehearing denied February 26, 1907, Reported at: 39 Ind.App 515 at 550.

From Johnson Circuit Court; W. J. Buckingham, Judge.

Action by John C. Ferrell, by his next friend, against the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company. From a judgment on a verdict for plaintiff for $ 900, defendant appeals.

Reversed.

M. Z Standard and Branigan & Williams, for appellant.

J. B. Huntington, Douglas Dobbins and Miller & Barnett, for appellee.

COMSTOCK, J. Black and Myers, JJ., concur in the result. Concurring opinion by Wiley, J. Robinson, C. J., dissents. Dissenting opinion by Roby, J. WILEY, J., concurs. ROBY, J., dissents.

OPINION

COMSTOCK, J.

Action brought to recover damages for personal injuries sustained by the appellee, caused by coming in collision with appellant's train. The complaint was in two paragraphs. Appellant's demurrer to the first was sustained and to the second overruled. Appellant answered the second paragraph by general denial, and the issue was tried on the second paragraph and the general denial thereto. Cause was submitted to a jury and a general verdict returned in appellee's favor for $ 900, for which amount judgment was rendered.

The appellant relies for a reversal of the judgment upon the action of the court in overruling its demurrer to the second paragraph of complaint and in overruling its motion for a new trial. Said paragraph was held to be sufficient by the trial court, as charging wilful injury. Instructions to the jury were given and refused, and the cause was tried upon the theory that said paragraph charged a wilful injury. To quote from appellee's brief: "There was not the slightest suggestion in the lower court that there was any element of negligence in this case. It was a wilful injury case, pure and simple." If not good upon this theory, the court erred in overruling appellant's demurrer.

Omitting the formal parts of said second paragraph of complaint, it is alleged that the defendant ran a locomotive and a train of cars over, along and upon its said railroad, situated in the town of Whiteland, Johnson county, Indiana, the same being an incorporated town of said State; that at the time said defendant so ran said locomotive and said cars, plaintiff was driving a team of horses, hitched to a wagon, along and upon a street of said town, "the same being a public thoroughfare in said town frequently traveled by large numbers of vehicles and foot passengers, and being situated in a populous part of said county and town; that at the time plaintiff attempted to drive across defendant's said railroad, where said public thoroughfare crosses the same, and while attempting to cross, as he lawfully might at said point, the same being a public crossing as aforesaid, defendant was wilfully and recklessly running said locomotive with said cars attached over and along said railroad through said town of Whiteland at an excessive, unusual and highly dangerous rate of speed, to wit, a speed of sixty miles per hour; that, when defendant approached said highway crossing and was attempting to pass over the same as aforesaid, defendant, well knowing the dangerous location of the same, and well knowing that the same was situated in a populous section of said county and town, and well knowing that said crossing was frequented by large numbers of teams and foot passengers, who must needs cross said defendant's railroad at said crossing, wilfully, purposely and recklessly, without regard to life or limb of the people who were crossing at that crossing, and without regard to the welfare of this plaintiff, ran its locomotive and train of cars over and against the team that plaintiff was driving, and against this plaintiff, with great force and violence, and by reason thereof said wagon was torn in fragments, said horses were instantly killed, and plaintiff was thrown a great distance with immense force, so that he was severely hurt and injured thereby, internally and externally, being bruised," etc.

Wilfulness implies design. It involves conduct which is quasi-criminal. Walker v. Wehking (1902), 29 Ind.App. 62, 63 N.E. 128; Union Traction Co. v. Lowe (1903), 31 Ind.App. 336, 67 N.E. 1021; Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62, 62 N.E. 694; Dull v. Cleveland, etc., R. Co. (1899), 21 Ind.App. 571, 52 N.E. 1013. It is said in Kalen v. Terre Haute, etc., R. Co. (1897), 18 Ind.App. 202, 63 Am. St. 343, 47 N.E. 694, that "to be good as a complaint for wilful injury, it should show by some consistent form of averment that the injurious act was purposely done with the intent on the part of the doer to inflict wilfully and purposely the particular injury of which complaint is made." Wilfulness is a desire or intention to produce a certain result. In Union Traction Co. v. Lowe, supra, the court said: "This paragraph of complaint is clearly insufficient. It falls far short, under the law as announced in the decided cases in this State, of stating a cause of action for a wilful injury. It seems to be a settled law of this State that a complaint which seeks redress for a wilful injury, involving, as it does, conduct which is quasi-criminal, must aver that the injurious act was purposely and intentionally committed with the intent wilfully and purposely to inflict the injury complained of." Wilfulness and negligence are held inconsistent. Purpose or design is foreign to negligence. Parker v. Pennsylvania Co. (1893), 134 Ind. 673, 34 N.E. 504, 34 N.E. 504, 23 L.R.A. 552. Wilfulness cannot be inferred from mere knowledge on the part of the operatives of the appellant of the presence of the injured party. Before wilfulness will be inferred such operatives must have knowledge also of the inability of the injured party to avoid the injury. Parker v. Pennsylvania Co., supra; Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62, 62 N.E. 694; Cleveland, etc., R. Co. v. Miller (1898), 149 Ind. 490, 49 N.E. 445. Where the doer was without knowledge of the presence and situation and peril of the injured party, the act done cannot be said to have been wilfully inflicted. Brooks v. Pittsburgh, etc., R. Co., supra; Parker v. Pennsylvania Co., supra.

A complaint charging wilful injury must be strictly construed. Union Traction Co. v. Lowe, supra. So that the paragraph of complaint before us, to be sufficient, should allege that the injurious act was purposely done with the intent on the part of the doer to inflict the injury of which complaint is made. Said paragraph does not allege that those operating the train knew of appellee's presence on and near the crossing. It is not averred that the injurious act was purposely done with the intent on the part of the doer, wilfully to inflict the injury of which complaint is made. In Conner v. Citizens' St. R. Co. (1896), 146 Ind. 430, 435, 45 N.E. 662, the court says: "The substance of the rule as established by the cases to which we have referred is, that to entitle one to recover for an injury, without showing his own freedom from contributory fault, the injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been committed under such circumstances as that its natural and reasonable consequence would be to produce injury to others, the actor having knowledge of the situation of those others." The only averment of wilfulness exists in the charge of the running of the train at a high rate of speed over a public crossing in a populous section of the town, knowing that said section was populated by large numbers of teams and foot passengers who must cross said defendant's road at said crossing. There is no averment that statutory signals were not given, not that any ordinance of the town was violated, nor that appellant knew that appellee was on or near the crossing. As against the pleader, in ruling upon the demurrer, we must presume that the railroad at the crossing in question, in both directions, was straight and open, and free from obstructions of any kind for a distance of eighty rods, and that the whistle was sounded and the bell rung as required by the statute. These conditions are inconsistent with a wilful intent. Such acts are not even negligence per se at an ordinary country crossing. Lake Shore, etc., R. Co. v. Barnes (1906), 166 Ind. 7, 76 N.E. 629.

Counsel for appellee contend that there are two classes of wilful injury cases: (1) Those in which the act that produced the injury was intentional; (2) those in which the act that produced the injury was done under circumstances such as evinced a reckless disregard of inflicting the injury complained of; that the case at bar belongs to the second class. The following cases are cited: Louisville, etc R. Co. v. Bryan (1886), 107 Ind. 51, 53, 7 N.E. 807; Belt R., etc., Co. v. Mann (1886), 107 Ind. 89, 92, 7 N.E. 893; Louisville, etc., R. Co. v. Ader (1887), 110 Ind. 376, 380, 11 N.E. 437; Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 387, 14 N.E. 228; Brannen v. Kokomo, etc., Gravel Road Co. (1888), 115 Ind. 115, 7 Am. St. 411, 17 N.E. 202; Citizens' St. R. Co. v. Willoeby (1893), 134 Ind. 563, 33 N.E. 627; Chicago, etc., R. Co. v. Spilker (1893), 134 Ind. 380, 33 N.E. 280; Korrady v. Lake Shore, etc., R. Co. (1892), 131 Ind. 261, 29 N.E. 1069; Cleveland, etc., R. Co. v. Miller (1898), 149 Ind. 490, 499, 49 N.E. 445; Pittsburgh, etc., R. Co. v. Judd (1894), 10 Ind.App. 213, 36 N.E. 775; Louisville, etc., R. Co. v. Cronbach (1895), 12 Ind.App. 666, 41 N.E. 15; Lake Erie, etc., R. Co. v. Brafford (1896), 15 Ind.App. 655, 661, 43 N.E. 882; ...