The Chicago, St. Louis And Pittsburgh Railroad Co. v. Nash
| Decision Date | 02 May 1891 |
| Docket Number | 3 |
| Citation | 27 N.E. 564,1 Ind.App. 298 |
| Parties | THE CHICAGO, ST. LOUIS AND PITTSBURGH RAILROAD COMPANY v. NASH |
| Court | Indiana Appellate Court |
From the Porter Circuit Court.
Judgment affirmed, with costs.
N. O Ross and G. E. Ross, for appellant.
T. J Wood and M. Wood, for appellee.
OPINION
This was an action brought by the appellee against the appellant to recover the value of a horse killed by the latter. The complaint was in two paragraphs. The appellant demurred separately to each paragraph. The demurrers were overruled, and these rulings are assigned as errors.
The allegations of the first paragraph, reciting them in substance, so far as is necessary to illustrate appellant's objections, were that the appellant, by its agents and employes, wilfully and willingly ran its morning passenger and mail train and locomotive, going south, at and against the animal, at a point on its line of railroad about one-half mile northwest of the town of Crown Point; and then and there said agents and employes of the appellant did wilfully and willingly, with said locomotive, and train of cars attached thereto, strike, and they did then and thereby wilfully and willingly kill said animal, etc.; which point, on said railroad, of contact and killing was and is in Center township, of Lake county, in this State. It was further averred that the killing of the animal was without the appellee's fault, carelessness, or negligence, and that he did not in any way contribute to the same, etc.
Counsel for the appellant insist that the allegation in this paragraph, that the appellant's servants "wilfully and willingly killed" the animal was not sufficient to show an intentional killing, and that in addition to such an allegation it was necessary to allege that the killing was wrongful.
The word "wilfully," in its ordinary uses, means by design; on purpose; with set purpose; intentionally; in an obstinate manner; as being governed by the will, without regard to reason, or without yielding to reason.
The word "willingly" is a weaker word, meaning voluntarily; readily; without reluctance; in the manner of being ready to do an act; of free choice; with one's free choice or consent; with a mind inclined or favorably disposed to an act.
To say that an act has been done wilfully and willingly, is to indicate that it has been done intentionally, and implies that the person doing it knew what he was doing, and acted from choice as a free agent.
Such an allegation is inconsistent with the idea of accident, mistake, inadvertence, negligence. It implies that the will was a party to the act, and that the act was done, not because of doubt or uncertainty as to the right or proper course to be pursued, but without adequate reasonable cause.
The common use of the word "wilfully" in the English language is in a sense denoting with intention. CAMPBELL, C. J., in Regina v. Badger, 6 E. & B. 137.
The expression in a statute, "wilfully hold over," was held to imply, not only a holding over after the term has expired, but a holding over in the absence of a bona fide belief on the part of the tenant that he is justified by the circumstances in so doing. COCKBURN, C. J., in Swinfen v. Bacon, 6 H. & N. 846.
" Wilfully,' in the ordinary sense in which it is used in statutes, means not merely voluntarily,' but with a bad purpose." Commonwealth v. Kneeland, 20 Pick. 206 (220).
"A wilful act is one done designedly, intentionally or purposely, as contradistinguished from accident, inadvertence or absence of intention or design." Commonwealth v. Perrier, 3 Phila. 229 (232).
"Wilful misconduct means misconduct to which the will is a party, something opposed to accident or negligence." Lewis v. Great Western R. W. Co., 3 L. R. Q. B. Div. 195 (206).
Doing, or omitting to do, a thing "knowingly and willingly," implies not only a knowledge of the thing, but a determination with a bad purpose to do it, or to omit doing it. Felton v. United States, 96 U.S. 699, 24 L.Ed. 875.
Wales v. Miner, 89 Ind. 118 (128).
In Pittsburgh, etc., R. W. Co. v. Stuart, 71 Ind. 500 (507-8), HOWK, J., uses the following language: "We are clearly of the opinion that this evidence did not even tend to prove that the appellee's horse was injured by or through the carelessness and negligence, and certainly not wilfulness, of the agents or servants of the appellant."
In Carter v. Louisville, etc., R. W. Co., 98 Ind. 552 (555), speaking of a complaint, it was said: "There was, according to the averments, that 'something more than mere negligence,' which evinces wilfulness, a purpose to injure."
It is true, that to entitle one to recover for an injury to which his own negligence has contributed, the injurious act 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 probable consequence would be to produce injury to others. There must have been, in such case, an actual or a constructive intent to commit the injury. In a complaint for such an injury there must be language which can be construed as charging that the person or persons who did the injurious act had an intent, either actual or constructive, to commit the injury. Belt R. R., etc., Co. v. Mann, 107 Ind. 89, 7 N.E. 893.
Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250, 14 N.E. 70.
"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 wilfulness on the part of the defendant." Cincinnati, etc., R. R. Co. v. Eaton, 53 Ind. 307.
The reports abound in the expressions, "wilful injury," "wilful misconduct," "injury wilfully inflicted," "wilful or purposed," "purposely or wilfully," "wilful tort," "wilful or intentional wrong," "wilfulness," etc.; and the word "wilfully," used as in the paragraph of complaint under consideration, has such an understood and accepted meaning in pleading that by its use in such manner the act in connection with which it is used is characterized as having been intentionally, purposely and tortiously done.
It is not necessary in such an action to use words indicating an act amounting to a crime or importing actual malice toward the owner of property injured.
This objection to the complaint is not well taken. The same may be said of the objection made by the appellant, that the complaint does not show that the animal was rightfully on its track. In a complaint for wilful injury, it is not necessary to show that the plaintiff was without contributory fault, or that an animal so injured was rightfully upon the track. Town of Salem v. Goller, 76 Ind. 291; Norris v. Casel, 90 Ind. 143; Terre Haute, etc., R. R. Co. v. Graham, 95 Ind. 286; Chicago, etc., R. R. Co. v. Hedges, 105 Ind. 398, 7 N.E. 801; Palmer v. Chicago, etc., R. R. Co., supra; Ohio, etc., R. W. Co. v. Walker, 113 Ind. 196, 15 N.E. 234; Hanna v. Terre Haute, etc., R. R. Co., 119 Ind. 316, 21 N.E. 903.
It is also contended that this paragraph does not sufficiently allege that the animal was upon the railroad track.
It is alleged that the appellant ran its morning passenger and mail train and locomotive, going south, at and against, etc., at a point on its line of railroad, etc., which point on said railroad of contact and killing, was, etc. We think this was sufficient.
There was no error in overruling the demurrer to the first paragraph.
In the second paragraph it was alleged that the appellant, by its agents and employes running and operating its morning passenger train going east, on, etc., in, etc., by the locomotive and cars attached thereto, ran against, over and killed the animal, etc.; that said agents and employes as aforesaid carelessly and negligently ran said locomotive and cars over and killed the said animal, without any fault or want of care by the appellee, and he did not contribute to said injury; that said animal was killed at a road crossing, and she was in plain view of the engineer on said track for more than one-half a mile, and he, knowing that said animal was on the railroad, did not give any alarm of the whistle or any danger signal, to frighten said animal from the track, and did not slacken the speed of his train, but ran against her at full speed and killed her, etc.
It is insisted by the appellant that the specific allegations of this paragraph overcome the general allegations of negligence of the appellant and freedom from fault on the part of the appellee. It is contended that the specific allegations admit as a fair inference therefrom that the appellee's fault contributed to the killing of the animal, and fail to show facts constituting negligence on the part of the appellant.
It is argued that the allegation that the animal was killed at a road crossing shows that the appellee was guilty of contributory negligence. It was not impossible for the animal to be at a road crossing without the fault of the appellee; and he alleged that he was without fault or want of care, and did not contribute to the injury.
Counsel have quoted a well expressed statement of the law as established in this State, from the opinion in Hanna v. Terre Haute, etc., R. R. Co., supra concerning the contributory negligence of...
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Chicago v. Nash
... ... mail train and locomotive going south at and against the animal, at a point on its line of railroad about one-half mile north-west of the town of Crown Point; and then and there said agents and ... ...