29 Ind. App. 694 | Ind. Ct. App. | 1902
Suit for personal injuries resulting in the death of appellant’s decedent. A jury returned a general verdict in appellant’s favor, and also returned answers to interrogatories upon which judgment was rendered in
In answering interrogatories the jury stated that decedent was struck by the engine about four o’clock p. m., August 24, 1897; that at the time she was fifty-four years old, was of ordinary bodily activity, and in full possession of the sense of sight and hearing usual in one of her age. The railroad track ran south from the depot at Alexandria to the Lake Erie crossing in the southwest part of the city and thence on south to and beyond where decedent was struck. There was no evidence as to the point she entered on the track, or whether she left it after entering and before being struck. The engine stopped at a point 300 to 600 feet north of the Lake Erie crossing, and about the time it started on south the whistle was sounded so as to 'be heard along the track still further south than where the decedent then was. It was about 2,200 feet from the crossing to the place where decedent was injured. Had decedent looked she could at any point between where she was struck and 100 feet north thereof have seen the engine a half mile. When decedent was thirty to two hundred feet north of the point where she was struck she could have looked north and have seen the engine in time to have left the track and avoided being struck and injured, but could not have done so at points twenty and ten feet north. When the train was 300 yards north of where decedent was struck it was running eighteen miles per hour. There was no evidence as to the rate of speed decedent was walking. She did not know a train was due. She did know the track was used as a footpath for pedestrians. There were three persons on and in charge of the engine and there was no evidence that any of them saw decedent or knew she was on the track, or that they had knowledge that it was practically certain that she was on the track. There was no evidence that the employes
The complaint does not proceed upon the theory that there is a liability on the ground of negligence. Moreover, the answers to interrogatories show such contributory negligence on decedent’s part as would defeat a recovery on the ground of negligence. If there is a liability it must appear either that the employes intentionally i’an the engine against the- decedent, or that what they did'at the time was done under such circumstances as evinced a reckless disregard for the safety of others and a willingness to inflict the injury complained of. Pennsylvania Co. v. Sinclair, 62 Ind. 301, 30 Am. Rep. 185; Louisville, etc., R. Co. v.
It appéars from the complaint and also from the answers to interrogatories that the decedent was, when killed, a licensee upon appellee’s property. It does not appear that the privilege of user was for the common interest or mutual advantage of both the decedent and the company, but that the privilege existed for the benefit of decedent only.. She was permitted to use the track as a footpath for her own interest and convenience. The track was a place of known danger, and was the exclusive property of the company, upon which no unauthorized person had any right to be. She differed from a trespasser only in the fact that she was upon the track with that consent of the company which might be implied from the company’s failure, to interfere with the previous like use by others. But because the company made no attempt to prevent travel along its track, it did not thereby invite the use of its track'for the purposes of such travel. As she was using the track for her own convenience, she went there at her own risk, and enjoyed the license with its “concomitant perils.” Indiana, etc., R. Co. v. Barnhart, 115 Ind. 399; Evansville, etc., R. Co. v. Griffin, 100 Ind. 221, 50 Am. Rep. 783; Jeffersonville, etc., R. Co. v. Goldsmith, 47 Ind. 43; Cleveland, etc., R. Co. v. Adair, 12 Ind. App. 569; Woolwine v. Chesapeake, etc., R. Co., 36 W. Va. 329, 32 Am. St. 859, 16 L. R. A. 271; Benson v. Baltimore Traction Co., 77 Md. 535, 20 L. R. A. 714, 39 Am. St. 436; Pomponio v. New York, etc., R. Co., 66 Conn. 528, 50 Am. St. 124, 32 L. R. A. 530; Redigan v. Boston, etc., Railroad, 155 Mass. 44, 31 Am. St. 520, 14 L. R. A. 276; Lary v. Cleveland, etc., R. Co., 78 Ind. 323, 41 Am. Rep. 572.
Some eases seem to hold that, whether a person upon a railroad track is a licensee or a trespasser, the company
But a licensee who is himself without fault may have a right of action because of the company’s negligence. Where the company acquiesces in the use of its track for a time sufficient to amount to a license, it is chargeable with knowledge of the danger to human life from operating its trains at that point. Acquiescing in the use of its tracks by any and all pedestrians who may desire so to do, it is bound to know that at any or all times there may be some one exercising this privilege. So that there may be a liability for a wilful injury although the presence on the track of the particular person injured was not known. If 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,” there is a liability. Louisville, etc., R. Co. v. Bryan, 107 Ind. 51.
The point at issue as presented by the complaint is in the high and dangerous rate of speed of the engine over a portion of the track used by the public as a footpath, at a time
It is not charged in the complaint that the employes in charge of the engine knew decedent was walking along the track, and the jury answer that there was no evidence that the employes saw the decedent on the track, or that they knew she was on the track as the engine approached her. While it thus appears that decedent had come into a situation of peril, it also appears that those in charge of the engine had no knowledge of her situation in time to have prevented the injury. Had those in charge of the engine seen decedent walking along the track, the failure to give any warning of the approaching engine would not have been a wilful wrong. They would have had the right to presume, until the last moment, that decedent would leave the track in time to avert danger, because it does not appear that it was apparent that for any reason she was unable to look after her own safety. Palmer v. Chicago, etc., R. Co., 112 Ind. 250; Terre Haute, etc., R. Co. v. Graham, 95 Ind. 286, 48 Am. Rep. 719; Terre Haute, etc., R. Co. v. Graham, 46 Ind. 239; Indianapolis, etc., R. Co. v. McClaren, 62 Ind. 566. So that if there is any liability on the. part of the company it must he based upon the proposition that the injurious act or conduct or omission on the part of the employes was by design and was such, — considering time and place, — as that its nature and probable consequence would he to produce injury to some one. Parker v. Pennsylvania Co., 134 Ind. 673, 23 L. R. A. 552; Louisville, etc., R. Co. v. Bryan, 107 Ind. 51.
To fix a liability the employes in charge of the engine are to be charged with conduct which is quasi criminal. Louisville, etc., R. Co. v. Bryan, supra. This conduct must be- determined from the circumstances and conditions surrounding them at the time. It appears the engine was running about eighteen miles an hour. It does not appear from the complaint or answers that the engine was running at a speed other than the usual speed at that place. The employes could presume that any person using the track must know that a train might pass at any time running at the usual speed. The answers show that the view from the engine along the track was obstructed only on one side of the engine, thus negativing the averment that the view of the track was excluded from view by the blinded windows. But the complaint does not show, neither do the answers, whether the decedent, when struck, had been walking along the track for some distance, or had just entered upon the track. So far as disclosed she may have stepped upon the track immediately in front of the engine. So that, before their failure to see decedent can be considered as a circumstance in attributing to them a wrongfti omission, it should be made to appear that she was in ¡
It is true a person may be held liable for the consequences of a wilful act without an actual knowledge of the presence of the object acted upon. Parker v. Pennsylvania Co., 134 Ind. 673, 23 L. R. A. 552. But this principle can not control in this case for the reason that it is not disclosed that the performance of any act which is charged to have been wilfully omitted would necessarily have given knowledge of decedent’s presence upon the track. The employes may have failed to learn of her presence upon the track in time to warn her and avoid injuring her, either from their failure properly to watch for persons on the track, or from the fact, that she may not have come upon the track until immediately before she was struck. In the absence of some showing to the contrary it must he presumed that the engine was run at the speed at which engines were usually run at that place. It does not appear that the performance of any alleged omitted duty would have discovsred the decedent’s presence on the track, or that any duty vas omitted, the performance of which woiild necessarily lave disclosed- the necessity of giving any warning signals. Yhen all the conditions and circumstances surrounding' he employes at the time are taken into consideration, we ¡an not say that their conduct was such as showed a reckess disregard for the safety of others, and- a willingness o inflict the injury complained of.
Judgment affirmed.