24 Ind. App. 492 | Ind. Ct. App. | 1900
The only question presented by the record is the action of the court in rendering judgment for appellee upon the answers to interrogatories notwithstanding the general verdict. Appellant was plaintiff, and brought his action to recover damages for the killing of his son. The complaint is in two paragraphs, but, as is shown by an answer to an interrogatory, the verdict of the jury rested upon the second paragraph. The first paragraph alleged a negligent killing, while the second charged the acts complained of as being done wilfully and wantonly. As we are only asked to review the action of the court in rendering judgment in favor of appellee upon the answers to interrogatories, a very brief statement of the facts charged in the second paragraph of complaint will suffice.
It is averred that appellee’s track crosses Seventeenth street in the city of Bedford; that said street crossing was much used, frequented, and traveled by pedestrians and teams; that the train that killed appellant’s son was approaching the crossing from the south; that south of the crossing there was an acute curve in the track; that from the direction from which the train was coming, the view was obstructed by buildings, etc., and that the noise of an approaching train could only be heard for a short distance from the crossing; that the train was running at the rate of thirty miles per hour; that there was “no man on the lookout” to ring the bell and sound the whistle; that there was no headlight burning on the locomotive; that the city ordinance required the ringing of the bell, sounding of the whistle, and limited the speed of trains to eight miles
The facts found specially by the jury are, in substance, as follows: That the crossing where the accident occurred was “much used and frequented by the public”; that there was nothing to prevent the engineer from seeing appellant’s son but darkness; that the engineer nor any other person was on the “lookout”; that the engineer did not see the decedent before the engine struck him; that the engine was running fifteen miles an hour; that the rate of speed was in violation of an ordinance of the city of Bedford; that the engineer could have seen decedent thirty feet from the cab of the engine; that, after coming within seeing distance of decedent, the engineer could not have checked the engine so as to avoid the injury; that decedent was struck on the north side of the Seventeenth street crossing; that decedent was killed while on appellee’s track for the purpose of walking southward on said track to his home; that the bell was not rung nor the whistle sounded before the engine reached the crossing; that the headlight was not burning; that appellee’s track south of the crossing is not straight.
It is charged in the second paragraph that the obstructions at and near the crossing were such that the decedent could neither hear nor see the approaching train. The jury disposed of this allegation by its answers to the following interrogatories: (14)' “From a point twenty feet east of defendant’s track on the north side of Seventeenth street, was
In an extended brief, counsel for appellant have called our attention to but one case, Parker v. Pennsylvania Co., 134 Ind. 673, 23 L. R. A. 552, to support their contention, and that case, as we shall show later in the opinion, is directly contrary to the theory upon which it is sought to hold appellee liable. The controlling question in this case is this: If a locomotive engineer, in operating his engine upon a railroad track runs it at a higher rate of speed than that allowed by an ordinance of a city, and if he neglects his duty in giving the required signals, by failing to ring the bell and sound the whistle, do such acts of negligence constitute wilfulness or wantonness? As to what constitutes in law “wilfulness”, as applied to the character of the acts here complained of, is no longer a matter of doubt or speculation, for its exact meaning has often been defined by the courts. In the case of Dull v. Cleveland, etc., R. Co., 21 Ind. App. 571, the question was under discussion, and many authorities cited. It was there held, in harmony with the authorities, that “wilful” means obstinately, stubbornly, with design, and with a set purpose. “Wilfulness” arises from the spontaneous action of the will, and can not exist without purpose or design. A wilful act is one committed with an evil intent. Any extended discussion as to what will constitute wilfulness is unnecessary, and we content ourselves by referring to the case last above cited and the authorities cited therein. See also Miller v. Miller, 17 Ind.
In the case of Sherfey v. Evansville, etc., R. Co., 121 Ind. 427, appellant’s decedent was killed by appellee’s train of cars while walking upon a street. It was alleged that the killing was unlawful and wilful, and the acts complained of as constituting wilfuiness were that appellee’s servants were running the train through a city at a high and dangerous rate of speed, and by increasing its speed as it approached the decedent, without ringing the bell, in violation of a city ordinance, etc. It is stated by the court in the opinion that there was no averment in the complaint that the appellee or its servants knew decedent was upon the track or street. The court, by Olds, J., said: “The words ‘wilful’, ‘careless,’ and ‘unlawful’ are made use of, but the specific acts charged are the running of the train at a high and dangerous rate of speed without ringing the bell, in violation of a city ordinance. No facts or circumstances are averred from which it can be said the defendant had knowledge that the decedent was upon the track, or that the circumstances or use of the street was such as the act of running the train in the manner charged constituted a reckless disregard of human life, or that injury would even probably result to some person by such acts of negligence.” True, what the court there said had reference to the complaint, and the distinction was made between negligence and wil
Before wilfulness can be attributed to servants or employes in the operation of a train of cars, facts should be averred and shown that would charge them with knowledge, actual or imputed, of impending danger, before any duty of the company arises to require of it affirmative acts or effort to avoid resulting injury. It is upon such knowledge that it is held to be the equivalent of wilfulness. Parker v. Pennsylvania Co., 134 Ind. 678.
In Louisville, etc., R. Co. v. Bryan, 107 Ind. 51, Mitchell, J., said: “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
The rule is well settled that no purpose or design can be said to exist where the injurious act results from negligence, and negligence can not be of such a degree as to become wilfulness. See Parker v. Pennsylvania Co., supra, and authorities there cited.
In the case we are here considering, the facts charged in the second paragraph of complaint show the grossest negligence, but the mere fact that such acts are characterized as “wanton” and “wilful” do not make them such, when measured by the general facts alleged. While we are not considering the sufficiency of the complaint, we are considering the facts specially found, with the view of determining if they are sufficient to show wilfulness on the part of the servants of appellee, upon’ which a judgment for the injury complained of can rest. We are unable to find a case holding that such facts constitute wilfulness, and our attention has been called to none.
Judgment affirmed.