250 F. 728 | 6th Cir. | 1918
Action for damages resulting from the death, August 3, 1914, of Salvatore Perna. The case was tried twice in the court below. Upon the first trial the administrator recovered a verdict for $3,455.53. The verdict was set aside and a new trial awarded. The case was by consent tried the second time upon a record of the testimony taken and transcribed at the first trial. After submission of the record to the jury, upon motion of the railway company a directed verdict was rendered in its favor and judgment entered accordingly. The administrator brings error.
The decedent, Perna, had been engaged in peddling fruit from a horse-drawn wagon along the Gratiot road, running in a north and south direction, between Detroit and Mt. Clemens. The railway company was at the time maintaining and operating an interurban electric railway within and along the easterly side of the Gratiot road. At a point some eight miles north of Detroit, the Bloss (or Fraser) road intersects the Gratiot road in an east and west direction. On the morning of the death Perna placed his team on the Gratiot road west of the railroad, near its west rail, for the purpose of selling and delivering fruit at a grocery located upon the northeast corner of these intersecting roads. While Perna was standing at the east side of his wagon he was struck upon the face and head and instantly killed by one of the handholds of a south-bound car of the railway company.
In the declaration under which the first trial took place it is alleged in each count that at the time the decedent received his injury lie was “apparently unconscious of his danger, and doing the work in which he was engaged at a point very near the * * * westerly rail of the * * * track, to wit, within ten inches of the same.” On the day succeeding rendition of the first verdict the administrator filed an amended declaration comprising only one count, but containing an allegation similar to the one just stated. The two declarations, however, differ, at least in terms, as to the character of the acts and omissions charged; the first averring mere negligence, and the second gross and wanton conduct of the railway company in that by its motonnan it “operated the car at an excessive rate of speed” (fifty miles an hour), “wantonly failed” to signal approach of the car, “wantonly failed” to observe Perna’s position of danger, and “wantonly failed” to take steps necessary to avoid a collision. The company filed a plea of the general issue. The testimony tends to show that at the time Perna was struck his horses and wagon were headed to the north and standing at a slight angle to the line of the railroad track, the rear end of the wagon being nearest to the track, and that Perna was standing upon a step of the wagon about midway between the front and rear easterly wheels. No part of the wagon or team was struck by the passing cars, there being two cars in the train called a doubleheader. The motorman standing in his place on the front car saw the horses and wagon when his car was as much as 1,000 feet north of the place of injury, and at something less than that distance, inferentially about 600 feet, he saw Perna cross the track, moving in a westerly direction, and place his hands in the wagon. Perna had received an
As respects the speed of the train, the distance within which the motorman could have stopped it, and the giving or not of warning by bell or whistle, the testimony is in conflict. No showing was made as to the distance between the west rail and the place at which Perna was standing when he was struck except through the allegation of the declaration that it was 10 inches; nor does the extent of overhang of the car appear. Considering Perna’s position aftd the slanting relation of the wagon and. horses to the line of the west rail, it would seem that at the moment of the accident Perna was at least as far removed from the west rail as was the nearest portion of the -\yagon; and since the wagon and horses were not struck at all, and Perna was struck only on the right side of his face and head by the projecting handhold of the car, it is difficult to understand how the injury happened unless it was through swaying of the car as it passed him or through sudden fright causing him to fall backwardly from the step. The motorman himself estimated the speed of the car at the time Perna was struck to have been a rate of 25 to 30 miles, and again at 20 to 25' miles, an hour; and, moreover, the car was then rounding a “slight bend” in the road.
“Whether or not the gross and wanton negligence of the defendant will always be a sufficient avoidance of the plaintiff’s contributory negligence, it must at least be either really willful, or so highly reckless as to constitute the equivalent of willfulness.”
True, the amendment does not expressly charge( willful conduct, but it does charge gross and wanton negligence in several respects particularly described. The apparent object of alleging wantonness in the
“ * * * One who willfully and wantonly, in reckless disregard ol the rights of others, by a positive act or careless omission, exposes another to death or grave bodily injury, is liable for tlxe consequences, even if the other was guilty of negligence or other fault in connection with the causes which led to the injury. The difference in rules applicable to the two classes of cases results from the difference in the nature of the conduct of the wrongdoers in the two kinds of cases. In the first case the wrongdoer is guilty of nothing worse than carelessness. In the last he is guilty of a willful intentional wrong.”
In McGhee v. Campbell, 101 Fed. 936, 942,_ 42 C. C. A. 94 (C. C. A. 5), Judge Shelby said in idle course of his opinion:
“In cases where the injury is wanton or willful, the doctrine of contributory negligence 1ms no application. * * * Now, if there was evidence before the j ury tending to prove the allegation of these counts, and to show that the*732 acts complained of were committed wantonly and recklessly, then the case could not properly be taken from the jury, even if the evidence, admitted under the pleas to the other counts charging simple negligence, as matter of law had shown contributory negligence. It is clear that one who commits a wrong willfully cannot defend by saying that the injured person was guilty of negligence. * * * The evidence, we think, to say the least, tended to show wanton negligence, or reckless indifference to the probable consequences of the acts complained of, which is construed to be the equivalent of intentional or willful.”
Judge Cooley in his work on Torts (2 Cooley, Torts [3d Ed.] p. 1442), thus states the rule:
“Where the conduct of the defendant is wanton and willful, or where it indicates that degree of indifference to the rights of others which may justly be characterized as recklessness, the doctrine of contributory negligence has no place whatever. * * *"
See Lacey v. Louisville & N. R. Co., 152 Fed. 134, 135, 81 C. C. A. 352 (C. C. A. 5); Strough v. Central R. Co. of New Jersey, 209 Fed. 23, 26, 126 C. C. A. 165 (C. C. A. 3), opinion by Judge Gray; Labarge v. Pere Marquette Co., 134 Mich. 139, 141, 95 N. W. 1073; Wabash R. R. Co. v. Speer, 156 Ill. 244, 251, 40 N. E. 835; Tanner’s Executor v. Louisville & Nashville Railroad Co., 60 Ala. 621, 637, 643; Palmer v. Chicago, St. L. & Pittsburgh Railroad Co., 112 Ind. 250, 254, 255, 14 N. E. 70; Harrington v. Los Angeles Ry. Co., 140 Cal. 514, 523, 74 Pac. 15, 63 L. R. A. 238, 98 Am. St. Rep. 85.
The judgment is reversed, with costs, and direction to award a new trial.