39 Ind. App. 515 | Ind. Ct. App. | 1906
Lead Opinion
Action brought to recover damages for personal injuries sustained by the appellee, caused by coming in collision with appellant’s train. The complaint was in two paragraphs. Appellant’s demurrer to the first was sustained and to the second overruled. Appellant answered the second paragraph by general denial, and the issue was tried on the second paragraph and the general denial thereto. Cause was submitted to a jury and a general verdict returned in appellee’s favor for $900, for which amount judgment was rendered.
The appellant relies for a reversal of the judgment upon the action of the court in overruling its demurrer to the
Omitting the formal parts of said'second paragraph of complaint, it is alleged that the defendant ran a locomotive and a train of cars over, along and upon its said railroad, situated in the town of Whiteland, Johnson county, Indiana, the same being an incorporated town of said State; that at the time said defendant so ran said locomotive and said cars, plaintiff was driving a team of horses, hitched to a wagon, along and upon a street of said town, “the same being a public thoroughfare in said town frequently traveled by large numbers of vehicles and foot passengers, and being situated in a populous part of said county and town; that at the time plaintiff attempted to drive across defendant’s said railroad, where said public thoroughfare crosses the same, and while attempting to cross, as he lawfully might at said point, the same being a public crossing as aforesaid, defendant was wilfully and recklessly running said locomotive with said cars attached over and along said railroad through said town of White-land at an excessive, unusual and highly dangerous rate of speed, to wit, a speed of sixty miles per hour; that, when defendant approached said highway crossing and was attempting to pass over the same as aforesaid, defendant, well knowing the dangerous location of the same, and well •knowing that the same was situated in a populous section of said county and town, and well knowing that said crossing was frequented by large numbers of teams and foot
Wilfulness implies design. It involves conduct which ia gwim-criminal. Walker v. Wehking (1902), 29 Ind. App. 62; Union Traction Co. v. Lowe (1903), 31 Ind. App. 336; Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62; Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571. It is said in Kalen v. Terre Haute, etc., R. Co. (1897), 18 Ind. App. 202, 63 Am. St. 343, that “to be good as a complaint for wilful injury, it should show by some consistent form of averment that the injurious act was purposely done with the intent on the part of the doer to inflict wilfully and purposely the particular injury of which complaint is made.” Wilfulness is a desire or intention to produce a certain result. In Union Traction Co. v. Lowe, supra, the court said: “This paragraph of complaint is clearly insufficient. It falls far short, under the law as announced in the decided cases in this State, of stating a cause of action for a wilful injury. It seems to be a settled law of this State that a complaint which seeks redress for a wilful injury, involving, as it does, conduct which is §-uasi'-criminal, must aver that the injurious act was purposely and intentionally committed with the intent wilfully and purposely to inflict the injury complained of.” Wilfulness and negligence are held inconsistent. Purpose or design is foreign to negligence. Parker v. Pennsylvania Co. (1893), 134
A complaint charging wilful injury must be strictly-construed. Union Traction Co. v. Lowe, supra. So that the paragraph of complaint before us, to be sufficient, should allege that the injurious act was purposely done with the intent on the part of the doer to inflict the injury of which complaint is made. Said paragraph does not allege that those operating the train knew of appellee’s presence on and near the crossing. It is not averred that the injurious act was purposely done with the intent on the part of the doer, wilfully to inflict the injury of which complaint is made. In Conner v. Citizens St. R. Co. (1896), 146 Ind. 430, 435, the court says: “The substance of the rule as established by the cases to which we have referred is, that to entitle one to recover for an injury, without showing his own freedom from contributory fault, the injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been committed under such circumstances as that its natural and reasonable consequence would be to produce injury to others, the actor having knowledge of the situation of those others.” The only averment of wilfulness exists in the charge of the running of the train at a high rate of speed over a public crossing in a populous section of the town, knowing that said section was populated by large
Counsel for appellee contend that there are two classes of wilful injury cases: (1) Those in which the act that produced the injury was intentional; (2) those in which the act that produced the injury was done under circumstances such as evinced a reckless disregard of inflicting the injury complained of; that the case at bar belongs to the second class. The following cases are cited: Louisville, etc., R. Co. v. Bryan (1886), 107 Ind. 51, 53; Belt R., etc., Co. v. Mann (1886), 107 Ind. 89, 92; Louisville, etc., R. Co. v. Ader (1887), 110 Ind. 376, 380; Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 387; Brannon v. Kokomo, etc., Gravel Road Co. (1888), 115 Ind. 115, 7 Am. St. 411; Citizens St. R. Co. v. Willoeby (1893), 134 Ind. 563; Chicago, etc., R. Co. v. Spilker (1893), 134 Ind. 380; Korrady v. Lake Shore, etc., R. Co. (1892), 131 Ind. 261; Cleveland, etc., R. Co. v. Miller (1898), 149 Ind. 490, 499; Pittsburgh, etc., R. Co. v. Judd (1894), 10 Ind. App. 213; Louisville, etc., R. Co. v. Oronbach (1895), 12 Ind. App. 666; Lake Erie, etc., R, Co. v. Brafford (1896), 15 Ind. App. 655, 661; Miller v. Miller (1897), 17 Ind. App. 605; Hancock v. Lake Erie, etc., R. Co. (1898), 21 Ind. App. 10, 19; Brooks v. Pitts
An examination of the. evidence shows that the charge of wilfulness, if properly made, is not sustained. The following is a condensed recital of the evidence: Appellant’s
To refer more particularly to the testimony of the engineer, he testified that he was in his proper place, on the
In the case of Lake Shore, etc., R. Co. v. Barnes (1906), 166 Ind. 7, it is said not to he negligence for railroad companies to run their trains over ordinary public crossings, in the absence of a speed ordinance, at any speed they choose, not inconsistent with the safety of the persons and things in their charge. In this case the evidence shows that the train was run in the usual manner, In the usual way and on schedule time. Presumptions may arise from circumstances, hut they are not conclusive as against positive evidence. No presumption of the wrongful purpose can arise from the fact that lawful signals were given of appellant’s approaching train; nor can such presumption arise from the running of the train in a lawful manner,
We have considered only the question of wilfulness, and, if we concede that the complaint is sufficient upon that theory, the charge is without support in the evidence.
Judgment reversed, with instructions to sustain the demurrer to the complaint.
Concurrence Opinion
Concurring- Opinion.
The facts pleaded and those disclosed by the evidence are so fully and fairly stated in the prevailing opinion that it is unnecessary to restate them here as a basis for the expression of the individual views which I entertain upon the vital questions involved in this appeal.
The appellee bases his right to recover upon the acts of appellant, as stated in the complaint, which acts are characterized as wilful. In other words, the appellee charged in his complaint that appellant “wilfully, purposely, and recklessly” inflicted injury upon him, and hence the judgment in his favor rests upon a wilful act of appellant, resulting in injury. It is important to understand what is meant in the use of the word “wilful,” or wilfully, as used in the complaint. It is “ The quality of being wilful; obstinacy ; stubborness; perverseness; voluntariness.’ ” Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571. It was said in In re Young & Harston’s Contract (1885), 31 Oh. D. 168, that 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 hlamable, but merely that the person of whose action or default the expression is used, is a free agent, and that what has been done -arises from the spontaneous action of his will. It amounts to
In the case from which I have just quoted it was held that the facts charged failed to bring the case within either of the conditions expressed, or to indicate an actual or con
The case I am considering presents no stronger case of wilfulness than the cases of Louisville, etc., R. Co. v. Bryan, supra, and Belt R., etc., Co. v. Mann, supra. Here appellee states three facts which he insists constitute wilfulness: (1) High and excessive rate of speed; (2) a public highway, crossing appellant’s track, which was frequently used by the public; (3) appellant knew that it was so used. It may be observed that it is charged that White-land, through which appellant’s train was being run, was an incorporated town, yet it is not charged that said train was run in violation of any ordinance limiting the speed of trains within the corporate limits of said town. This being true, appellant had the right to run its train over the crossing at any rate of speed it chose that was not inconsistent with the safety of the “persons or things” in its charge. Lake Shore, etc., R. Co. v. Barnes (1906), 166 Ind. 7, and authorities cited. In the case last cited the action was based upon negligence, and the negligence charged was in running a train of cars at a high and dangerous rate of speed
In many respects we are living in an exceptional age, and it may be truthfully said that we are living in an age of rapid transit. It is a fact gleaned from the current events of the day that railway companies are continually increasing the speed of their trains to meet the demands of their patrons and the rapid growth of business. We also know, as a matter of common knowledge, that railways, traversing the country, cross highways in frequent use by persons traveling upon them. If it can be said as a matter of law (and it is a question of law arising upon the demurrer to the complaint) that the facts pleaded here constitute wilfulness, for which appellant is answerable in damages, then railroad companies will be greatly restricted in the operation of their trains, the rights of the traveling public will be infringed, and rapid transit retarded. Not
Dissenting Opinion
Dissenting Opinion.
This is an action for damages on account of personal injuries averred to have been wilfully inflicted upon appellee by the appellant. The cause was tried upon the second paragraph of complaint, a demurrer to the first paragraph having been sustained. The issue was formed by a general denial. Trial by jury, verdict for $900, motion for new trial overruled, and judgment on verdict from which this appeal is taken.
' The action of the court in overruling a demurrer, for want of facts, to the second paragraph of complaint, is assigned as error. The pleading is unnecessarily prolix, but it is therein directly averred that the appellant “wilfully, purposely and recklessly” inflicted the injuries complained of. This allegation is essential to a complaint counting upon wilfulness, and tenders the issue. The complaint was sufficient and the demurrer was correctly overruled. Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 387;
Whiteland is an incorporated town and a station on the defendant’s railroad. The train by which appellee was struck was not scheduled to stop at Whiteland, and the same speed was maintained through the town as through the country. The rate at which this particular train was running was a little faster than usual, estimated at sixty miles an hour. The town is divided by the railroad track, being partly on the east and partly on the west side thereof. There were two streets crossing the track in said town, one the main street and one north at the depot. Plaintiff was injured at the depot crossing. There was a canning factory one-fourth of a mile north of the depot. The wagon road crossed the railroad at about right angles, after which it described a curve and ran due -north past the canning factory, diverging from the railroad, the direction of which was northwest and southeast. The defendant’s station, sixteen by forty feet in size, was north of the highway and twenty feet east of the center of the railroad track. A water-closet and coal shed stood at its northeast corner. Twenty feet further northeast, along said wagon road, was a blacksmith shop. There was an orchard between the highway and railroad north of the depot, and there were shade trees at various points along the highway. The foliage upon the trees at the date of the injury complained of (June 10) together with the buildings described, greatly obstructed the view of persons approaching from the east, rendering it difficult for them to see trains coming from the north. That portion of the track north of the canning factory was hidden by the factory buildings. There were points within two hundred feet of the railroad from which a traveler could see such train if the relative positions occupied by the train and traveler at the moment of observation happened to be favorable, and there were many places from which it could not be observed. Appellant’s plat shows the situation as follows:
Appellee, standing up in a lumber wagon, driving from the canning factory, entirely oblivious of the defendant’s train, drove along the highway and upon the track, at which place his wagon was struck by said train with great force. The general verdict carries with it, under the issues, a finding that the collision with plaintiff’s vehicle was wilful. Whether such finding is supported by any evidence is the question upon which the disposition of the appeal depends, and is presented by an assignment that the court erred in overruling the motion for a new trial. A correct answer depends upon a clear understanding of the issue. The common meaning of the word “wilful” is “voluntarily or intentionally.” Chicago, etc., R. Co. v. Nash (1891), 1 Ind. App. 298, 302; Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. 571; Miller v. Miller (1897), 17 Ind. App. 605; City of Indianapolis v. Consumers Gas Trust Co. (1895), 140 Ind. 246, 255; Illinois Cent. R. Co. v. Leiner (1903), 202 Ill. 624, 631, 67 N. E. 398, 95 Am. St. 266; 2 Bouvier’s Law Diet., title, Wilfully; Clark & Marshall, Crimes (2d ed.), §60.
Wilfulness and negligence are incompatible terms. Negligence arises from inattention, thoughtlessness, and heedlessness, while wilfulness cannot exist without purpose or design. Brooks v. Pittsburgh, etc., R. Co., supra; Parker v. Pennsylvania Co. (1893), 134 Ind. 673, 679, 23 L. R. A. 552; Miller v. Miller, supra; Pennsylvania Co. v. Meyers (1894), 136 Ind. 242, 258; Indiana, etc., Oil Co. v. O’Brien (1903), 160 Ind. 266, 272; Cleveland, etc., R. Co. v. Tartt (1900), 99 Fed. 369, 39 C. C. A. 568, 49 L. R. A. 98; Terre Haute, etc., R. Co. v. Graham (1884),
It will not be necessary for the purposes of this case to inquire into the elements of any degree of homicide above that of manslaughter. Bnder our statute, a railroad engineer who carelessly runs his locomotive against a passenger-car standing upon the railroad track, thereby causing the death of a person in the car, is guilty of manslaughter. State v. Dorsey, supra; Potter v. State (1904), 162 Ind. 213, 64 L. R. A. 942; Anderson v. State (1889), 27 Tex. App. 177, 11 S. W. 33, 11 Am. St. 189, 3 L. R. A. 644. This is no more than an application of the doctrine that “a man may commit murder or manslaughter by doing otherwise lawful acts recklessly.” Commonwealth v. Pierce (1884), 138 Mass. 165, 52 Am. Rep. 264, 5 Am. Crim. Rep. 391; Commonwealth v. Hartwell (1880), 128 Mass. 415, 35 Am. Rep. 391.
No form of statement can so clearly demonstrate the scope and effect of the doctrine as a brief resumé of facts somewhat analogous to those involved in the case at bar, which have been judged by the highest courts to come within the principle. “If anyone should drive so rapidly along a great thoroughfare leading to a large town, as to be unable to avoid running over any pedestrian who may happen to be in the middle of the road, it is that degree of negligence in the conduct of a horse and gig which amounts to an illegal act in the eye of the law; and if death ensues from the injuries then inflicted, the parties driving are guilty of manslaughter, even though considerable blame
“Being late for the train, Jackson was driving at a furious rate, at full gallop, and ran over a child going to school, and killed it. * * * If they [the jury] were of the opinion that the prisoners were driving at a dangerous pace in a culpably negligent manner, then they are guilty.” Reg. v. Kew & Jackson (1872), 12 Cox C. C. 355.
In the case of Queen v. Salmon (1880), 6 Q. B. D. 79, 29 Wk. Rep. 246, Lord Colridge, O. J., said: “The conviction must be affirmed. If a person will, without taking proper precautions, do an act which is in itself dangerous, even though not an unlawful act in itself, and if in the course of it he kills -another person, he does a criminal act which in law constitutes manslaughter.”
A switchman carelessly failed to set a switch and thereby caused a loss of life. The supreme court of New Jersey, in affirming a conviction for manslaughter, said: “He owed a personal duty not only to his employers but to the public. He was found to have been grossly negligent in the performance of.that duty, whereby human life was sacrificed. His conviction was right.” State v. O’Brien (1867), 32 N. J. L. 169.
“If the defendant was unlawfully, wantonly, and recklessly driving upon the public highway, and thereby ran down and killed one who had a right to be there, the fact
The general rule deduced from the cases is that the negligent performance of a duty, or the negligent omission to perform a duty, is regarded as an unlawful act; and, if it results in homicide is homicide in the commission of an unlawful act for which the perpetrator is criminally liable.
The supreme court of Massachusetts has in some late and well-considered cases discussed the question of civil liability for .wilful injury, and we quote from one of them as follows: “The law is'regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds him to have intended the„ natural consequences of his act, and treats him as guilty of a wilful and intentional wrong. It is no defense to a charge of manslaughter, for the defendant to show that, while grossly reckless, he did not actually intend to cause the death • of his victims. In these cases of personal injury there is a constructive intention as to the consequences, which, entering into the wilful, intentional act, the law imports to the offender and in this way a charge which otherwise would be mere negligence becomes, by reason of a reckless disregard of probable consequences, a wilful wrong. That this constructive intention to do an injury, in such cases, will be imported in the absence of an actual
Eorty years ago the Supreme Court of Indiana, speaking by a judge who has had no superiors in strength of intellect and grace of - diction, said: “It ■ is well settled that where the negligence of the defendant is so gross as to imply a disregard of consequences, or a willingness to inflict the injury, the plaintiff may recover though he be a trespasser, or did not use ordinary care to avoid the injury. Recklessness in the management of the train is such gross negligence as is utterly regardless of consequences.” LaFayette, etc., R. Co. v. Adams (1866), 26 Ind. 76, 78. “The injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been so committed under such circumstances as that its natural and probable consequence would be to produce injury to others. There must have been either an actual or a constructive intent to commit the injury.” Belt R., etc., Co. v. Mann (1886), 107 Ind. 89, 93. See, also, Louisville, etc., R. Co. v. Bryan (1886), 107 Ind. 51;
The question as to what is recklessness and what is due care, in a prosecution for involuntary manslaughter for killing another in doing a lawful act in an unlawful manner, is a question of fact for the jury. Queen v. Cavendish (1874), 8 Ir. Rep. C. L. 178; People v. Thompson (1899), 122 Mich. 411, 81 N. W. 344; United States v. Taylor (1851), 5 McLean 242, Fed. Cas. No. 16,441; Rex v. Williamson (1829), 3 Car. & P. *635; Reg. v. Markuss (1864), 4 F. & F. 356; Rex v. Long (1830), 4 Car. & P. *398; Rex v. Spiller (1832), 5 Car. & P. *333; Commonwealth v. Pierce (1884), 138 Mass. 165, 52 Am.
When a charge of wilful injury is supported by evidence, which is claimed to show recklessness, amounting to a constructive intent, in the operation of a railroad train, the question as to the existence of such recklessness and intent, depending upon facts never twice alike, is, both by analogy to the rule in manslaughter cases and upon principle, for the jury. Barr v. Chicago, etc., R. Co. (1894), 10 Ind. App. 433, 439; Overton v. Indiana, etc., R. Co., supra; Memphis, etc., R. Co. v. Martin (1897), 117 Ala. 367, 383, 23 South. 231; Memphis, etc., R. Co. v. Martin (1901), 131 Ala. 269, 30 South. 827; Tennessee, etc., R. Co. v. Hansford (1899), 125 Ala. 349, 365, 28 South. 45, 82 Am. St. 241; Lake Shore, etc., R. Co. v. Bodemer (1892), 139 Ill. 596, 29 N. E. 692, 32 Am. St. 218; Southern R. Co. v. Drake (1902), 107 Ill. App. 12. Thus it was said by the supreme court of Illinois, “that whether the defendant was guilty of’ wilful or wanton conduct * * * was purely a question of fact for the jury to determine from all the evidence, * * * and it was not the province of the court to inform the jury that some particular fact in the case was conclusive of that question. Chicago, etc., R. Co.
Wilfulness, wanton negligence, wantonness, are terms used in many states without any clearly defined distinction, but are, generally speaking, regarded as equivalent and interchangeable, as will appear from reading the cases in which they are used. Cleveland, etc., R. Co. v. Cline (1903), 111 Ill. App. 416, 422. The following language used by the Alabama supreme court is peculiarly ap
The doctrine of wilfulness arises in two aspects, the distinction between which has been clearly marked by the authorities heretofore cited, the one involving the actual knowledge on the part of the wrongdoer of actual peril in the particular instance, the other involving facts from which a willingness to inflict injury is implied from reckless indifference. Wilful and intentional wrong, that is a willingness to inflict injury, cannot be attributed to one who is without consciousness that his act or omission will or. may probably lead to wrong and injury. Therefore, as a matter of pleading, wilfulness must be directly averred. It is well settled, however, as a matter of evidence, that the knowledge of danger upon which, in connection with the absence of subsequent diligence to avoid its consequences, a charge of wilfulness may be maintained, need not be that which is presently acquired through the' physical senses. “The party charged need not, on the particular occasion see or hear, or through other sense become advised of the actual presence of every element necessary to constitute the danger that really exists. If * * * he knows of the crossing where people are wont to be in such numbers and with such frequency, a fact also known to him, as that to run a train along there with such great speed as not to be readily controlled, and which might not admit of the escape of persons crossing the track, his conduct, he having- in mind that he was approaching such a place, would authorize the imputation of wantonness, wilfulness or reckless indifference to consequences, though in point of actual fact he did not in the particular instance know of the presence of persons in exposed positions.” Richmond, etc., R. Co. v. Greenwood (1892), 99 Ala. 501, 513, 14 South. 495; Alabama, etc., R. Co. v. Hall (1894), 105 Ala. 599, 17 South. 176; Georgia Pac. R. Co. v. Lee, supra; Louisville, etc.,
The standard by which recklessness in the doing of a lawful act is judged, is an external one of the conduct of a person of ordinary prudence in the same or similar circumstances. Commonwealth v. Pierce, supra. The act of the engineer in running the engine over the crossing in question at the speed and under the circumstances enumerated seems to have been done at the express instance of the appellant company, which made the schedule calling for the speed which the jury found to have been, in view of such conditions, recklessly excessive, and required him to conform thereto. The charge of wilfulness being made against appellant is supported not only by the evidence detailing the acts and omissions of its servants in charge of the engine, but by its own deliberate and premeditated course. This should lead to an affirmance of the judgment. There are certain considerations, however, supposed to have weighed against the finding, which, because of the insistence with which they are urged, deserve notice.
Th'e presence of a railroad track is in itself a warning of danger, and that fact is usually sufficient to convict a traveler of contributory negligence in failing to observe precautions thereby suggested to him before undertaking to pass over such track. In the case under consideration, all questions of contributory negligence are eliminated, and the
It has come to be a well-known fact — so well known as to be a matter of common knowledge — that the warning conveyed by a railroad track, an unobstructed view of it
The negligent performance of a duty and the negligent omission to perform a duty, where they result in death, are eovkally the basis upon which a conviction for manslaughter
To exonerate from all liability a corporation which runs a railroad train over the streets and through the town at a rate so swift that its employes can only catch a glimpse of the white face of a sober traveler, who is whirled through the air as the engine passes, and at the same time hold a near-sighted man, driving a cart along a village street at eight miles an hour, guilty of manslaughter in running over a drunkard whom he did not see, evidences an acrobatic intellectual performance devoid of humanity and inconsistent with the instinct of civilization.
The judgment should be affirmed.
Rehearing
On Petition foe Reheaeing.
The disposition of this appeal is not of great moment to the parties immediately concerned, and no further attention would be given to it if the principles involved were not of unusual importance. Those principles are not abstractly open to dispute, but abstract principle in itself avails nothing. It becomes potent only when correctly applied to facts coming within its reason, and therefore the problem which tries the patience and challenges the efforts of the courts is and must always be found in the application of principle to fact. „ All persons are equal before thé law, and the sure guaranty of every man’s right lies in the protection of the right of every other man; and the first and highest concern of the State, and therefore of its law, is for the lives and limbs of its citizens, not only for their good but for the good of the government which depends upon them.
Reference has been made, during the discussion growing out of this petition for rehearing, to “ancient cases dug up” for use in the dissenting opinion heretofore filed. The authorities therein cited speak for themselves. The writer believes that it is the duty of the courts to regard prece
When the country was new, its population sparse, its forests uncut, and its streams unbridged, the construction of a railroad was a great and difficult undertaking. They were then, as they are now, necessities. The development of that locality which was so fortunate as to be penetrated by a railroad was assured. Money was not plentiful, and the public built the railroads. Taxes were levied, subsidies voted, contributions made and grading and excavating was done gratuitously by the farmers along the line. Public-spirited citizens guaranteed the raising of stated amounts beyond the ability of the town to pay, and impoverished themselves in making good the guarantee; but the railroads were built, and the returns were so vast that the foreclosures and reorganizations, by which stocks and bonds issued to individuals and municipalities were wiped out, seemed of little importance. In that eager, hopeful, expanding day, the details of railroad construction and operation were crude. Parallel lines of iron rails reaching from Chicago to New York were the sole concern. They sprawled across the prairie, through the town, and into the city. Had they first been laid through a populous, compact and wealthy state, great care would naturally have been exercised from the beginning. They would have been fenced and guarded, overhead bridges and underground passageways would have been a first requisite. Railroads were not thus constructed in this country. Grade crossings were the rule, and the idea that any duty rested upon the company, except as tardy legislatures declared it, was not entertained. The citizen or the officer who at that time did anything to delay the rapid completion of these great public highways became
The doctrine of contributory negligence was speedily invoked to protect them from liability for damages on account of maiming or killing persons at highway crossings. Eor a long time such question was left to the jury, to be by it determined according to the standard of the conduct of a reasonably prudent man under the same or similar circumstances. Ohio, etc., R. Co. v. Collarn (1881), 73 Ind. 261, 270, 38 Am. Rep. 134. This standard was ultimately forsaken, and the courts prescribed the duty of a traveler exercising ordinary prudence. He must have looked both ways and listened attentively, and, if he could see, he was presumed to see, although he did not see, and, if he could not see, he was guilty of negligence for not getting out and going ahead until he could see, in the exercise of the “extraordinary care” which was now enjoined upon him. Chicago, etc., R. Co. v. Thomas (1900), 155 Ind. 634. The effect of the application of this' doctrine was practically to exonerate the railroad company from liability in actions based on negligence, because of casualties occurring at highway crossings. There has been a slight tendency recently to mitigate the severity of the holdings (Greenawaldt v. Lake Shore, etc., R. Co. [1905], 165 Ind. 219) ; but in the main they are still enforced. The disregard of the rights and welfare of others by one person always arouses resentment against him, and such disregard on the part of such corporations, unchecked by the courts, has produced a result which might have been foreseen. Manifestations of such disregard are not confined to cases of the class under
Another condition, which was not counted upon, exists. A modern railroad corporation is a money-making machine. It is within the protection of the law as a person, hut it is a great deal more than a person. Its sole function is to make money. Its board of directors take no share of responsibility to themselves as individuals. They give only general orders, and are concerned only with results — with annual statements which show increased dividends. The superintendent obeys the general orders, and feels absolved
The superstructure has been erected before the foundation was laid. The superstructure is exemption from liability on account of crossing accidents. The foundation
It seems to me that judges who have obligated themselves to administer justice, without regard to person, ought to hesitate a long time and have cogent cause before setting-aside such judgment as that rendered by the trial court in this case; and, with great deference, I must respectfully submit that this petition should be granted, and such judgment affirmed.