158 Ind. 62 | Ind. | 1902
This action was brought by the appellants against the appellee for the alleged wrongful killing of their decedent. It is not necessary to set out even an abstract of the complaint, under our view of the case. It suffices to say upon this subject that the first two paragraphs of complaint contain substantive charges of negligence, and that the third paragraph of the complaint contains a charge that the killing of said decedent was wilful. Issues of fact were ultimately joined upon the several paragraphs of complaint, and the cause was submitted to a jury for trial. Upon the conclusion of the appellants’ evidence, the court below, upon appellee’s motion, charged the jury to find for the defendant. A verdict was returned for the appellee, and the court rendered final judgment in its favor. In the appropriate manner, the appellants have presented to. this court for review the question as to the correctness of the instruction above referred to. This brings us to the evidence in the case. On the night of November 26, 1896, the appellants’ decedent shipped a car load of stock to Indianapolis, over the line of railroad operated by the Cincinnati, Hamilton and Dayton Railway Company. He rode in the caboose of the train, as a passenger. Upon the arrival of the train at Indianapolis, the caboose was stopped at a point in the railroad yards about 500 feet west of a public street in said city known as State street. At that point the decedent alighted. The night was dark, and there was a high wind blowing from the north. The safest method of egress from the yards was to proceed eastward to State street, and he chose that method, walking along the space between the track that his train had lately passed over, and the track denominated as the “C. H. & D. main”, until he arrived
Appellants’ learned counsel properly concede that, if this court holds that the decedent was a traveler upon the street, the appellee is not liable under paragraphs of the complaint
This is not a case like Louisville, etc., R. Co. v. Lucas, 119 Ind. 583, 6 L. R. A. 193, and Lucas v. Pennsylvania Co., 120 Ind. 205, 16 Am. St. 323. In those cases the original plaintiff therein was injured while proceeding in the nighttime along a platform extending from one railway station in the direction of another; each company had constructed the portion of the platform that was upon its own grounds, but it was so joined as to constitute an apparently continuous platform; the plaintiff in said cases received her injury upon the grounds of the Pennsylvania Company, having, as a passenger, alighted from a train of the Louisville, New Albany and Chicago Railway Company, for the purpose of proceeding to the railway station of the Pennsylvania Company, there to take a train on its railroad. This court, in the case last cited, very properly said: “She was not an intruder as to either, but was entitled to protection from both.” The difference between the facts in the eases cited and in the case at bar is obvious. Here, the decedent alighted in a railway switch yard; there was nothing to suggest common ownership of the various tracks that were there, and he proceeded to the track of the appellee, where he received his fatal injury, not for the purpose of entering into the relation of carrier and passenger with it, but as a .matter of mere convenience to himself.
In the case of Evansville, etc., R. Co. v. Griffin, 100 Ind. 221, 223, 50 Am. Rep. 783, Mitchell, J., in pronouncing the opinion of this court, said: “An owner may not by invitation, either express or implied, induce another to come
Appellee had not invited the decedent to go upon its track; it had not even consented thereto, and it was not bound to mark its property lines as against the passengers of the Cincinnati, Hamilton & Dayton Railway Company. It may be that the decedent had no knowledge that he was committing a trespass, but even if he was but a technical trespasser, his administrators can assert but a wrongdoer’s rights. At the basis of every well-grounded action for negligence must lie a legal duty to use care. Evansville, etc., R. Co. v. Griffin, 100 Ind. 221; Faris v. Hoberg, 134 Ind. 269, 39 Am. St. 261; Daugherty v. Herzog, 145 Ind. 255, 32 L. R. A. 837, 57 Am. St. 204; Cannon v. Cleveland, etc., R. Co., supra; 1 Shearman & Redfield on Reg. §5, et seq. Moreover, if the appellee owed a duty, but did not owe it to the decedent, this action by his administrators will not lie. 1 Shearman & Redfield on Reg. §8; Daugherty v. Herzog, supra; Cannon v. Cleveland, etc., R. Co., supra.
It only remains to consider the rights of the appellants under the third paragraph of the complaint, that, as heretofore stated, contains a charge of a wilful killing. A trespasser is not an outlaw, and it is within bounds to state that it is actionable to wilfully injure such an one. Cannon v. Cleveland, etc., R. Co., supra. But, inasmuch as appellants’ counsel are by no means conceding that there is no liability under the third paragraph of the complaint if the decedent was killed while upon the street, we prefer to examine the question as to whether the killing of decedent was wilful upon what is probably the true assumption, namely, that at the moment of the collision he had stepped from a place where he was a wrongdoer to a' place where he could no longer be characterized as a trespasser.
This court has frequently quoted approvingly the following definition of wilfulness given by Mitchell, J., in Louisville, etc., R. Co. v. Bryan, 107 Ind. 51, 53: “Where one person negligently comes into a situation of peril, before another can be held liable for an injury to him, it must appear that the latter had knowledge of his situation in time to have prevented the injury. Or it must appear that the injurious act or omission was by design, and was such— considering time and place — as that its nature and probable consequence would be to produce serious hurt to some one.
While we grant that the act of the appellee would have amounted to negligence, but for the reason heretofore stated, yet we deem it clear, beyond a peradventure, that the act of appellee was not wilful.
The result of running a locomotive over the crossing in question, at the rate of speed of fifteen miles an hour, without sounding the whistle or ringing the bell, would not ordinarily be to injure travelers upon the street, because their own instincts of self preservation would cause them to be on their guard in crossing the railroad track. The case, therefore, does not come within the definition of wilfulness declared in Louisville, etc., R. Co. v. Bryan, 107 Ind. 51, that there must be an express intent, or that the injurious act or omission must be such that “its nature and probable consequence would be to produce serious hurt to some one.”
It must be borne in mind that while the evidence tends to prove that the appellee’s servants were heedless of the rights
The question presented to the trial court, upon the close of appellant’s evidence, was, under the circumstances, plainly one of law, and its act, in directing a verdict in appellee’s favor, was proper.
The judgment of the court below is affirmed.