10 Ind. App. 213 | Ind. Ct. App. | 1894
The appellee sued the appellant to recover damages for the death of one Jesse Davis, who was killed while crossing appellant’s track, being struck by one of its passenger trains.
There were three paragraphs of the complaint, each of which was held good on demurrer. The appellant answered by a general denial, but before going to trial the appellee dismissed as to the first paragraph of his complaint. Upon the trial there was a verdict for the appellee in the sum of $1,000, upon which the court rendered judgment.
The first errors assigned in this court call in question the sufficiency of the facts alleged in the second and third paragraphs of the complaint to state a cause of action. The substance of the second paragraph is as follows: “That said line of railway passes through and across the incorporated town of Jonesville, in said county and State; that on the 18th day of March, 1892, and for many years prior thereto, the defendant, in addition to said main line of railway running through and across the town of Jonesville, controlled, owned, and maintained, and now owns, controls, and maintains a switch track on the west side thereof, running parallel with said main track, a distance of — feet away; that said line of railroad and said switch track adjacent thereto run through said town of Jonesville in a north and south direction; that
And the third paragraph is as follows: “For third and additional paragraph of complaint, the plaintiff, Daniel Judd, administrator of the estate of Jesse Davis, deceased, complains of the defendant, the Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company, and says that the defendant is a corporation duly organized under the laws of the State of Indiana, and doing business
Plaintiff alleges that the said -Jesse Davis leaves a widow, Catharine Davis, and two minor children; that deceased was a strong, able-bodied man, and was the sole means of support for the said widow and minor children; that by reason of the wrongful, unlawful killing of the said JeSse Davis, as aforesaid, the said widow of said Davis, and minor children, have been wrongfully and unlawfully deprived of the services and society of said Jesse Davis; that said services and society were of the value of $10,000; that this plaintiff has been appointed and has duly qualified as administrator of the estate of the said deceased.”
Under the allegations of each paragraph of the complaint, the running of the “engine or locomotive over, upon, and against the said Jesse Davis” is charged to have been done by the appellant’s servants wantonly, recklessly, and willfully, with knowledge of decedent’s
It matters not whether the decedent was a trespasser or a licensee, the appellant had no right to intentionally injure him, hence we need say nothing, in passing upon the sufficiency of either paragraph, relative to the apparent distinction made by counsel of appellant’s duty to those on its track, whether there rightfully or as trespassers. If appellant’s servants knew that the decedent was unconscious of the impending danger in time to have avoided it, and without regard to the consequences made no effort to avoid it, such conduct would virtually imply a willingness or willfulness. The general allegations charging a willful or intentional injury are sufficient to withstand a demurrer.
It is next urged that the court below erred in overruling appellant’s motion- for a new trial.
The facts, as disclosed by the evidence, and apparently conceded by counsel, are that the appellant’s railroad, consisting of a main track, and a side track on the west side thereof, runs from north to south through Jones-ville, in Bartholomew county; that it had a passenger station on the east side of its main track, situated about the middle of the town and opposite the side track; that on the 18th day of March, 1892, one of appellant’s engines, attached to a work train, was standing on the side track about sixty-five yards south of the station, and that the steam was escaping from the engine, making so much noise that persons walking along the track near to it could not hear a train approaching on the main track; that the decedent was walking north along the main track, as was the custom of persons going to appellant’s passenger station, and when near the engine attached to
The engineer of the passenger train testified that he saw the decedent on the track, and that when he noticed that he did not leave the track, he gave the alarm signals and then applied his air brake and used every available means to stop his train, but the train did not stop until the decedent was struck; that he applied the brakes and made every effort to stop the train as soon as he saw that the decedent did not heed the danger signals; that he supposed decedent would leave the track; and that he had no intention or desire to injure him, but, on the contrary, tried to avoid doing so. This evidence of the engineer is uncontradicted.
As to whether or not the decedent was a trespasser or a licensee on appellant’s track need not enter into the consideration of the right to recover in this case, for whether rightfully or wrongfully there, it was his duty to use the senses of sight and hearing to avoid injury, and, failing to do so, must be considered to have brought about his own death, unless the injury was willfully and intentionally inflicted. It has been asserted, and we think rightly, that an engineer of a moving train has a right to presume, until the last moment, that a person walking on the track will leave it in time to avoid being
“It is to be presumed that a person of mature years will not stand still upon a railway track and deliberately suffer himself to be run down. It is also a presumption that all men are in the possession of their senses, and will exercise ordinary diligence in time of danger to take care of themselves. It is, in accordance with these assumptions, held that when an engineer of a locomotive sees ahead of him a man upon the track, he may presume that the man possesses ordinary capacity, that he can see, and hear, and reason from cause to effect, and that, as a train approaches him, he will step aside and not be run over.” Beach Cont. Neg., 394.
An engineer may rely upon this assumption until he is, in some manner, advised, or he sees, that such person is unconscious of his peril or disabled so that he can not protect himself and avoid injury.
“To constitute a willful injury the act which produced it must have been intentional or must have been done under such circumstances as evinced a reckless disregard for the safety of others and a willingness to indict the injury complained of. It involves conduct which is <fuasi criminal.” Louisville, etc., R. W. Co. v. Bryan, 107 Ind. 51.
Under the facts in this case, there can be no recovery for a willful injury, for the reason that there is no evidence to sustain a verdict upon- that theory.
A verdict must stand upon evidence supporting the
Judgment reversed, with instructions to grant a new trial.