21 Ind. App. 571 | Ind. Ct. App. | 1899
Appellant sued appellee for the alleged negligent killing of his infant child. The complaint is in two paragraphs. In the first it is charged that appellee, on October 22, 1896, owned and operated a railroad passing through the city of Muncie; that appellant had a daughter, Yonnie Dull, seven years old, who on said day, without his knowledge, consent, or fault, left his residence, which was. near appellee’s line of road, and wandered onto appellee’s track; that when she was on said track she was in plain view, and could have been seen from the east for a distance of three-quarters of a mile; that there is nothing in the way to obstruct the view of the engineer, fireman, or other employe of appellee riding on a locomotive traveling west from seeing said child upon said track had they looked, and, if they had so looked, they could have seen her in ample time to have stopped the train before striking her; that on said day appellee ran its locomotive and train of cars westward on its track, which train was about twenty minutes late arriving at Muncie; that coming into said city said train was running about sixty miles per
The only material difference between the first and second paragraphs of complaint is that in the second it is charged that the engineer in charge of the locomotive did see appellant’s child a distance of 600 feet before reaching it, and, after sseing her, he did not stop the train, or slacken its speed. The case was put at issue by an answer in general denial. Trial by a jury, and a special verdict returned under the law of 1895. Appellant and appellee each moved for judgment on the special verdict; that of appellant being overruled and that of appellee being sustained. Appellant’s motion for a venire de novo and a new trial were respectively overruled.
Before proceeding to consider the special verdict, it is important that we first determine whether the complaint proceeds upon the theory of wilfulness, or merely that of negligence. As we must be guided by the complaint itself, and not by what counsel say about it, we must consider its averments, and in doing this we must keep in view the marked distinction between the terms “wilfulness” and “negligence.” The meaning of wilfulness, as given by Webster, is: “The quality of being wilful; obstinacy, stubbornness; perverseness; voluntariness.” The supreme court of judicature of England has defined the word wilful as follows: “Wilful is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning, it generally, as used in courts of law, implies nothing blamable, but merely that the person of whose action or default the expression is used, is a free agent, and that
The complaint must be construed upon the theory which is most apparent and clearly outlined by the facts stated therein. Pittsburgh, etc., R. Co. v. Sullivan, 141 Ind. 83, 27 L. R. A. 840; Jones v. Cullen, 142 Ind. 335; Batman v. Snoddy, 132 Ind. 480. As was said by Comstock, J., in Cleveland, etc., R. Co. v. Dugan, 18 Ind. App. 435: “As only one theory can be contained in a single paragraph, the court must construe the pleading most strongly against the pleader, and determine the theory from the prominent or leading allegations of the pleading.” As has been held in
The complaint in this case avers that appellant and his child were free from negligence contributing to the injury. This allegation itself tends strongly to show that the complaint is based upon negligence and not wilfulness; for the averment of freedom from contributory negligence has no place in the complaint for an injury wilfully inflicted. Pennsylvania Co. v. Sinclair, supra; Cincinnati, etc., R. Co. v. Eaton, Adm., 53 Ind. 307. Now, if we take each paragraph of the complaint, and group together the charging parts, we find the following facts stated: That the engineer could have seen appellant’s child upon the
This leaves the complaint to rest upon negligence on appellee’s part, and freedom from negligence on
Interrogatory eighty-nine and answer are as follows: “On October 22, 1896, when Yonnie Dull went and stood on defendant’s railroad track, and was there struck and killed by defendant’s locomotive, considering her age and judgment, and all the other circumstances proven, and properly inferable from the evidence in this case, is she properly chargeable with contributory negligence, for doing what she did at and just before she was killed? Ans. Yes.”
And, as relating to the same class of facts, we copy in full the following interrogatories and answers: “(94). Did Yonnie Dull, on said day, realize the danger to herself in going and standing upon the defendant’s said track?” “Ans. Yes.” “(100). Was Vonnie Dull of sufficient age and understanding to realize the danger she would occasion herself on said day by going upon defendant’s said railroad track?” “Ans. Yes.” “(103). Was the said Yonnie Dull, on the 22nd day of October, 1896, too young and inexperienced to be chargeable with Contributory negligence in going upon the defendant’s said railroad track?” “Ans. No.” “(152). On October the 22, 1896, when Yonnie Dull went and stood upon the defendant’s railroad track, and w;as there struck and killed by defendant’s locomotive, considering her age and all the other facts and circumstances proven and properly inferable from the proven facts and circumstances in this case, did her conduct in going and standing upon said track directly contribute to her death?” “Ans. Yes.” That the death of said child was caused by reason of appellee’s servants running said train at a greater rate of speed than eight miles
The special verdict is quite lengthy, consisting of 188 interrogatories, and answers, but we have given an abstract of every fact found that is material to the questions to be decided. From the facts found, it is hardly necessary for us to remark that the appellee was grossly and culpably negligent in running its train in the manner it did, while passing through the corporate limits of the city of Muncie. It is shown that Muncie is a populous city; that appellee’s track- crosses many streets; and that appellee’s train was running at a rate of speed far in excess of that
The next question which naturally arises is, was appellant’s child guilty of negligence which contributed to her death? We enter upon the discussion of this question with the facts clearly established that Yonnie Dull was sui juris. From the facts found, she was capable of fully understanding the danger which might result from her conduct. We need not here repeat, in detail, the facts found which bear upon this question, but they may be properly grouped in the following statement: She had been in the habit of going on errands, crossing railroad tracks, and making purchases, without assistance; she had attended school a part of two terms; she understood that it was dangerous to stand on railroad tracks when trains were coming; she was used to railroads, and had been instructed of their danger; she was physically and mentally vigorous and intelligent for one of her age; her parents had frequently cautioned her about the danger of going and playing upon railroad tracks; she was not too young and inexperienced to realize that it would be dangerous to go and stand upon a railroad track; she appreciated the danger that might result to her by standing on the track; she was not too young and inexperienced to be chargeable with contributory negligence in doing what she did, and
As to whether or not it was dangerous for Vonnie Dull to stand on appellee’s track, under all the facts found, considering especially the fact that she knew it was dangerous, leaves no room for inference as to what a reasonably prudent person would do under like circumstances. It is only where there is room for difference of opinion between reasonable persons, as to the existence of facts from which negligence, if found, must be inferred, or where there is room for difference of opinion as to inferences which might be
In a recent case in Wisconsin, it was held to be contributory negligence for a boy sixteen years of age to stand upon a railroad track with his back to an engine, which was then standing still only twenty feet from him, but liable to start at any moment^ Lofdahl v. Minneapolis, etc., R. Co., 88 Wis., 421, 60 N. W. 795. In that case the court said: “Such conduct cannot be made ordinary care even by the verdict of a jury.” In Twist v. Winona, etc., R. Co., 39 Minn. 164, 39 N. W. 402, it was held to be contributory negligence as a matter of law for a boy-ten years old to play upon a turn-table, when he had been warned against so do
In many of the cases to which wé have referred, it was not shown affirmatively that the children understood and realized the danger that threatened them, but nevertheless it was held that they must be presumed to have so realized and understood, and that they were therefore negligent in assuming the risk incident to their surroundings. So we see at a glance that the case before us is a much stronger one, for here it is expressly and specifically found that Vonnie Dull had been duly warned, knew and realized the danger she was in, and knew that peril to her was incident to her position. We think the rule is well settled that where a person voluntarily goes into a place of danger, which he understands and fully
Appellant contends that even if Yonnie Dull was guilty of negligence, it does not bar a recovery, under the facts found, because the engineer was guilty of negligence after he discovered her. By this contention, appellant seeks to invoke the doctrine that though a person may have subjected himself to injury by his own negligence, yet he may recover for such injury, if the person inflicting it could have avoided it after discovering his danger, or if he 'failed to use ordinary care. In Lake Erie, etc., R. Co. v. Juday, 19 Ind. App. 436, it was said: “It is sound doctrine, strongly entrenched by the authorities, that when one person sees another in danger or peril, from which he is unable to extricate himself with reasonable care and prudence, it is the highest duty of such person so to act as not to increase the peril, and if he does act in a manner to increase the danger, with a full knowledge of the facts, it is'negligence, for which he may be required to respond in damages.” Of many cases so holding we cite the following.” Citizens’ St. R. Co. v. Lowe, 12 Ind. App. 47; Cincinnati, etc., R. Co. v. Long, Adm., 112 Ind. 166; Indianapolis, etc., R. Co. v. Pitzer, 109 Ind. 179; Pittsburgh, etc., R. Co. v. Judd, Adm., 10. Ind. App. 213. Judge Thompson states the rule as follows: “Perhaps a better expression of this rule is, that although the plaintiff has negligently exposed himself or property to an injury, yet if the defendant, after discovering the exposed situation, inflicts the injury upon him through a failure to exercise ordinary care, the plaintiff may recover damages.” Thompson on Negligence, 1157 note. See, also, Beach on Cont. Neg., section 54; Brown v. Lynn, 31 Pa. St. 510; Barker v. Savage, 45 N. Y. 191; Morris
And so we think the rule would apply in a case where a person had subjected himself to danger, though he was unconscious of impendingperil,if the person about to inflict the injury could, after discovering the peril, have averted it by the use of ordinary care and diligence. But this doctrine, as wholesome and sound as it is, and tenaciously as it should be adhered to and enforced, is not applicable here, under the facts found by the jury. Here we have a case where the injured party subjected herself by her own negligence, to imminent peril; she was unconscious of her impending danger; appellee’s engineer discovered her danger when he came within about 500 feet of her, and then as the jury found, it was impossible for him to stop his engine before reaching her. He did all he could do, by giving danger signals in the hope that the child might be warned and extricate herself from peril. True, the engineer did not apply the air brakes, but it is found that if he had, he could not by any means within his power have stopped the train, and hence in the emergency he did all that was possible for him to do, as above indicated. His failure to attempt to stop the train under these facts, even if negligent, was not therefore the proximate cause of the injury, but the proximate cause was the negligence of the child. By her own negligence she placed' herself where it was impossible for the engineer to do anything to save her from injury,, after he discovered her peril. It looks to us, from all the facts found, that the engineer did all that was possible for him to do. In any event, an engineer running a locomotive engine cannot be expected to act in an emergency in the “twinkling of an eye,” with the coolness and forethought that one would after he has had
In Kirtley v. Chicago, etc., R. Co., 65 Fed. 386, 391, it was said: “The evidence shows that the engineer did make an effort to notify the deceased of his danger, while it shows no response to this admonition on the part of the deceased. This, at least, manifests a willingness upon the part of the engineer to do all in his power to save the deceased from harm; and we cannot justly presume in the face of such actual efforts, that the engineer would have relaxed any efforts that under the stress of circumstances might have occurred to an agitated mind to avert the accident. We are not to judge of the care exercised under circumstances of this kind, by a deliberate retrospect of the facts, because we can never place ourselves, by a calm analysis of the features of these occurrences, in precisely the same frame of agitation as those who are actors in such events. If the engineer did all that reasonably occurred to him to do, confronted,-as he was, by a pressing emergency, we cannot censure him because, after deliberate reflection over the events, we can point out something else which he might have done to have averted the calamity. The extremity of the situation was not of the engineer’s making. It was created by the delib
But there is an additional reason why appellant cannot recover, under the facts found, and that is, Vonnie Dull is shown to have been a trespasser, and there is no finding of wilful killing. It is shown that where the child was killed, was over 100 feet from the nearest street crossing, upon the private grounds and track of appellee. Because of her tender years, she was no less a trespasser. In Baltimore, etc., R. Co. v. Bradford, 20 Ind. App. 348, it was held that a child two years old, who had wandered on a railroad track, not
The special verdict does not find a wilful killing, and hence there can be no recovery, even if we assume that the theory of the complaint is based upon wilfulness. Other questions presented by the assignment of errors are waived by a failure to discuss them. The trial court did not err in rendering judgment for appellee on the special verdict,.’and there is no reversible error in the record. Judgment affirmed.
Robinson and Comstock, J. J., concur in the conclusion.