Weathers v. . Baldwin

Walker, J. We have set forth, in the statement of the case, only the testimony of the plaintiff given in his own behalf, and that of one of his witnesses, as upon a motion to nonsuit the evidence introduced by the plaintiff must- be taken as true, and so considered with all reasonable inferences which may be drawn therefrom. Snider v. Newell, 132 N. C., 614; Brittain v. Westhall, 135 N. C., at 495; Biles v. R. R., 143 N. C., 79. If the testimony is thus construed, the case should have been submitted to a jury to find whether the defendant had not only wrongfully injured the plaintiff, as was done at a former term of the court, but whether she committed not only a wrongful injury, but also a willful injury. C. S., 768, provides: “No woman shall be arrested in any action except for willful injury to person, character, or property.” It would be useless to set out here the numerous definitions of the word “willful” or “willfully,” the former being the term used in the statute. It is sufficient to consider and adopt one of the definitions, which will answer for the purpose of this appeal. In Jones v. Bland, 182 N. C., 70, at p. 73, the question arose as to what would constitute “willfulness or wantonness,” and the Court held it to be “negligence so gross as to manifest a reckless indifference to the rights of another,” citing Everett v. Receivers, 121 N. C., 519. This, as being one of the definitions of “willful injury” or “willful tort” was accepted and approved in Ill. Cent. R. Co. v. Leiner, 202 Ill., 624, and Cin. etc., R. R. Co. v. Cooper, 120 Ind., 469. In the latter case the Court held that it was correct to charge the jury as follows: “To establish the charge of willfulness, as set out in the fourth paragraph of the complaint, I instruct you that an actual intent to do the particular injury alleged need not be shown; but if you find from all the evidence that the misconduct of the defendant’s servants was such as to evince an utter disregard of *280 consequences, so as to inflict the injury complained of, this may of itself tend to establish willfulness.” The Court said, in this connection, that the instruction not only expressed correctly the rule of law applicable to such cases, but that recklessness, reaching in degree to an utter disregard of consequences, may supply the place of a specific intent. In the case of Ill. Cent. R. R. Co. v. Leiner, supra, it was said by the Court that to constitute willful and wanton negligence it is not always necessary to prove that the defendant’s servants are actuated by ill-will towards the plaintiff. In East St. Louis Connecting Railway Co. v. O’Hara, 150 Ill., 580, it is said: “If it be true, as the evidence tends to show, that the defendant’s servants, at the time plaintiff was injured, were running their engine in the dark, without a headlight, or a bell ringing, and at a high and dangerous rate of speed, along a much-frequented street, and where many persons were likely to be passing on their, way to the.'ferry landing, or otherwise, such acts would be liable to the construction of being in wanton and willful disregard of the rights and safety of the public generally, so as to amount in law to wanton and willful negligence. And it was not necessary, in order to raise an inference of such negligence, to prove that the defendant’s servants were actuated by ill-will, directed specifically towards the plaintiff, or should have known that he was in such position as to be likely to be injured.” Thompson on Negligence (vol. 1, sec. 22) thus defines' a willful injury: “An entire absence of care for the life, the person, or 'the property of others, such as exhibits a conscious indifference to consequences, makes a case of constructive or legal willfulness, such as charges the person whose duty it was to exercise care, with the consequences of a willful injury.” In Ill. Cent. R. R. Co. v. Leiner, supra, the Court approved this instruction to the jury: “What is meant by willful and wanton misconduct is such conduct as amounts to an intentional wrong, or of such a reckless character as shows that the person or persons guilty of such misconduct were at the time acting in such a manner as shows that they had an utter disregard for the safety and lives of other persons.” See, also, Tolleson v. So. R. R., 80 S. C., 7. It may be that there is testimony in this case to show an actual intent to willfully commit the injury, but whether this is so or not, there is sufficient evidence of an intent to do so, by inflicting injury recklessly and in total disregard of the rights and safety of others. The defendant, if the evidence be true, was in open and almost defiant violation of the statutes as to the running of automobiles in cities and towns, and her conduct can rightfully be characterized as nothing less than reckless, and as exhibiting no regard whatever for the lives and safety of others who were at the time using the streets, as they had a lawful right to do, at the hour of the morning service in the churches of a large and populous *281 town. It is bard to conceive bow tbe defendant could tbink tbat sbe would not injure some one on tbe streets as sbe really did. But ber liability to tbe defendant depends upon bow tbe jury will view tbe testimony. Sbe may be right, and it may so appear upon tbe trial of tbe issue, but tbe jury must decide tbe question at issue. There was error in tbe ruling of tbe court withdrawing tbe issue from tbe jury. _ _ New trial.