Vandalia Railroad Company v. Clem

• Decision Date: 14 December 1911
• Docket Number: 7,632
• Citation: 96 N.E. 789,49 Ind.App. 94
• Parties: VANDALIA RAILROAD COMPANY v. CLEM
• Court: Indiana Appellate Court

96 N.E. 789

49 Ind.App. 94

VANDALIA RAILROAD COMPANY v. CLEM

No. 7,632

Court of Appeals of Indiana

December 14, 1911

From Owen Circuit Court; Joseph W. Williams, Judge.

Action by Charles G. Clem against the Vandalia Railroad Company. From a judgment for plaintiff, defendant appeals.

Reversed.

Samuel O. Pickens and Owen Pickens, for appellant.

Willis Hickam, for appellee.

OPINION

ADAMS, J.

Action by appellee for damages occasioned by the killing of his team of horses and the destruction of his wagon and harness by one of appellant's freight-trains, in its yards at the town of Gosport, Indiana.

The complaint sets out the surroundings, situation and condition of the railroad yards, the circumstances attending the entry of the team upon appellant's property, and the resulting injury, and concludes as follows: "That within a few minutes after plaintiff's said team had entered upon defendant's said railroad track at said place, and at about 5:30 o'clock in the evening, and while it was too dark to see said team and wagon, without light, at a sufficient distance ahead of said engine, as it approached them from the west, to stop said train, at the rate of speed at which it was then running--thirty miles an hour--and to prevent its running over said team and wagon said defendant, without a light, and without a lookout on said engine, and without said yards being in any way lighted recklessly, wantonly and wilfully, and without seeing or endeavoring to see said wagon and team so confined upon its tracks, and without any care or regard for the lives or safety of persons or teams upon said tracks, recklessly and wilfully ran said train on, against and over said team, wagon and harness, while it was so confined upon said defendant's main track, in or adjoining its switch yards and thereby wilfully and wantonly crushed and killed both horses, and destroyed said wagon and harness, to plaintiff's damage in the sum of $ 350, all of which occurred through the wilfulness and recklessness of said defendant in so operating its said train, without any fault or negligence whatever on the part of this plaintiff."

Appellant demurred to the complaint for want of sufficient facts, which demurrer was overruled, and the cause was put at issue by an answer in denial. There was a trial by jury, and a finding for appellee for $ 375. Appellant's motion for a new trial was overruled, and judgment was rendered on the verdict.

The errors relied on for reversal are (1) the overruling of the demurrer to the complaint, and (2) the overruling of the motion for a new trial. Under the last assignment, the only error complained of is the refusal of the court to give a peremptory instruction directing a verdict for appellant.

The action is clearly predicated on wilfulness, and not on negligence. If appellee's complaint does not state a cause of action for the wilful killing of his team and the destruction of his property, then the demurrer should have been sustained.

It will be noted that there is no charge in the complaint that the injurious act was purposely and intentionally committed, with intent wilfully and purposely to inflict the injury complained of. Such an averment, or substantially such an averment, has been held necessary to constitute a good complaint for wilful injury. Pittsburgh, etc., R. Co. v. Ferrell (1907), 39 Ind.App. 515, 78 N.E. 988; Union Traction Co. v. Lowe (1903), 31 Ind.App. 336, 67 N.E. 1021; Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 14 N.E. 228; Kalen v. Terre Haute, etc., R. Co. (1897), 18 Ind.App. 202, 63 Am. St. 343, 47 N.E. 694; Walker v. Wehking (1902), 29 Ind.App. 62, 63 N.E. 128; Indianapolis St. R. Co. v. Taylor (1902), 158 Ind. 274, 63 N.E. 456.

In the case of the Union Traction Co. v. Lowe, supra, this court said: "It seems to be the 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. * * * The complaint in an action of this character, quasi-criminal in its nature, and involving, as it does, an intent to inflict the injury complained of, ought to be strictly construed by the rules of pleading herein announced."

Without questioning this rule of construction, we do not think the words "purposely and intentionally committed with intent wilfully and purposely to inflict the injury complained of," constitute a necessary form for charging wilfulness in a complaint, but that the purpose and intent to inflict the injury may be charged in other words. In the complaint before us, it is averred that the defendant "recklessly and wilfully ran said train against and over said team." If the train was wilfully run over the team, it implies that the injury was committed not only with purpose and intent, but with knowledge as well. Such is the meaning of "wilful." 8 Words and Phrases, 7468. This charge, standing alone, we think would make the complaint good as an action for wilful injury, but it does not stand alone. In the same sentence it is averred that the train was run "without seeing or endeavoring to see said wagon and team." This would be negligence. But, there are no degrees of negligence, and negligence, no matter how reprehensible, can never approximate wilfulness. The two conditions have nothing in common and everything in conflict. The specific averment that defendant did not see nor try to see the team charges negligence, and must control the general averment that the injury was wilfully committed.

We...