Louisville & Nashville Railroad v. Anchors

COLEMAN, J. — The defendant in error, as administratrix, sued to recover damages for an unlawful injury to J. F. Anchors, which resulted in his death. Each of the ten counts of the complaint were demurred to by the defendant, and there were several grounds of each of [499] the demurrers. The demurrer to the second, sixth and tenth counts raise the question as to whether these counts charge that the injury was willfully inflicted, or resulted from such wanton negligence as to be the equivalent of a willful wrong. The court overruled the demurrer which challenged the sufficiency of these counts in this respect. We are of opinion the pleader and the trial court misapprehended the nature of a willful injury or wanton negligence as defined by this court. In the case of Ga. Pac. Railway Co. v. Lee, 92 Ala. 262, it was said : "Willful and intentional wrong, a willingness to inflict injury, can not be imputed to one who is without consciousness, from whatever cause, that his conduct will inevitably or probably lead to wrong and injury.” In the case of Birmingham Railway & Electric Company v. Bowers, 110 Ala. 328, we said: “To constitute willful injury, there must be design, purpose, intent to do wrong and inflict the injury.” “In wanton negligence, the party doing the act, or failing to act, is conscious of his conduct and, without having the intent to injure, is conscious from his knowledge of existing circumstances and conditions, that his conduct will naturally or probably result in injury.” — L. & N. R. R. Co. v. Webb, 97 Ala. 308 ; Stringer v. Ala. Min. R. R. Co., 99 Ala. 397; R. & D. R. R. Co. v. Vance, 93 Ala. 149; L. & N. R. R. Co. v. Richards, 100 Ala. 365. Apply these principles to the 10th count of the complaint. It avers that “defendant’s engineer, Robert Wallace, who had control of the running of the locomotive that propelled said train, wantonly or willfully failed to blow the whistle, or ring the bell at least one-fourth of a mile before reaching the regular station or stopping place at Anniston, and said engineer wantonly or willfully failed to continue to ring the bell or blow the whistle at short intervals until he had reached the said stopping place, and because of such willfulness or wantonness, the said passenger train of the defendant ran into and against a passenger car of the Oxford Lake Line at its crossing,” &c. Italics ours. Everything averred in this count might be true, and yet not show that the purpose of the defendant, in failing to ring the bell or blow the whistle, was to run into and against the passenger car of the Oxford Lake Line. As a count for willful injury it is defective. Nor does the count fiyer a [500] state of facts from which, a knowledge could be imputed to defendant, that the natural and probable consequences of his conduct would result in a collision. If the count had averred that defendant willfully failed or refused to blow the whistle or ring the bell with the intent to commit the injury, or willfully refused to ring the bell, having a knowledge, that probably the Oxford Lake train at the time was at the crossing, and the natural or probable result of the willful omission would be to collide, the count -would have been sufficient. It may be true that the injury resulted, “because of such willfulness ” in failing to ring the bell, “ or by reason of such speed” as averred in the sixth count, or ‘ ‘ whereby ’ ’ as averred in the second count, and yet the result may not have been within the design or purpose of the engineer of the defendant, nor done or omitted under such circumstances and conditions, which would charge him with a knowledge that the natural or probable consequences of his conduct would be to inflict injury. We would call attention to the use of the word "reckless" in the second count. In the case of the K. C., M. & B. R. R. Co. v. Crocker, 95 Ala. 412, 483, we considered and declared the distinction between the words "willful" and "reckless,” and in the case of Stringer v. Ala. Min. R. R. Co., 99 Ala. 397, we declared that the'words “gross,” “reckless ” per se, “ when applied to negligence, have no legal significance which import other than simple negligence or a want of due care.” The use of the word “reckless” in connection with averments of facts to which it refers and explains, may imply more than mere heedlessness or negligence. The 4th count charges, that Robert Wallace ‘ ‘ negligently * * * permitted and suffered the said locomotive and train to run into and against a passenger car.” This averment is sufficient as a count for simple negligence. The legal effect would not be different, if the word “.recklessly” had been substituted for the word “ negligently ” in this count. — Ala. Gr. So. R. R. Co. v. Hall, 105 Ala. 599. Construing the 6th count, our opinion is, the latter clause gives meaning and controls the preceding averments, and construed as a whole charges no more than that the death of plaintiff’s intestate resulted “by reason of ’ ’ the willful running of said train at a high rate of speed, but does not aver, that the intention or purpose [501] in running the train was to inflict the injury, nor does it aver facts which show that defendant knew that the probable result of such conduct would be to inflict injury. — Hall Case, supra. The demurrer to the 6th and 10th counts should have been sustained. The second count charges that the .defendant “ willfully caused the locomotive and train to run into and against a passenger car,” &c. A similar averment was held sufficient to show a willful injury in the case of Birmingham Min. R. R. v. Jacobs, 92 Ala. 187. It may be that this count is objectionable in that it unites averments of simple neg-. ligence with averments showing a wailful injury, but no objection was raised on this account, and the demurrer to it was properly overruled. — L. & N. R. R. Co. r. Markee, 103 Ala. 160. Section 1145 of the Code of 1886 provides as follows : “ When the tracks of two railroads cross each other, engineers and conductors must cause the trains of which they are in charge to come to a full stop within one hundred feet of such crossing, and not proceed until they know the way to be clear ; the train on the railroad having the older right of way being entitled to cross first.” The demurrer raises the question as to wdiether "the railroad of the Oxford Lake Line, an- electric railroad running from Anniston to a point beyond the corporate limits of the city, upon which the plaintiff’s intestate was conductor,” is a railroad within the meaning of said section 1145. In the case of the Birmingham Min. R. R. Co. v. Jacobs, 92 Ala. 199, we had occasion to consider sections 1145 and 1173.. The question in that case Avas, whether railroads using dummy engines and operated beyond city limits are subject to these provisions. After careful deliberation, this court reached the conclusion that railroad corporations organized under and by virtue of sections 1918 and 1921 of the Code of 1886, as amended by act of February 25th, 1887, (Acts, 1886-87, p.144), were not strictly street railways, as contemplated in the statute providing for the organization and operation of street railroads, (sections 1603-1612 of the Code of 1886), and that railroads organized under the act of February 25th, supra, using dummy engines, were subject to said statutory provisions. The question now is, whether a railroad upon Avhich electricity is used as the moving power, [502] is a railroad within the provisions of the statute. The statute itself makes no distinction, and in considering the purposes intended in the adoption of these regulations, we are unable to see any good reason why persons travelling upon electric cars are not entitled to the same protection as those travelling upon cars propelled by steam. Public necessities even within city limits demand increased facilities for travel over the horse car, and many decisions of courts applicable to street railways operated by horses, could not be applied without manifest injustice to trains operated by steam or electricity. The speed, economy and convenience afforded by electricity commend its use even for commercial purposes as well as travel, as superior in some respects to any other motive power thus far applied. A railroad within the provisions of ^the statute, does not cease to be such railroad, because it may discontinue the 'use of steam, and substitute that of electricity. The change in the motor power may relieve it from some provisions of .the statute, but those which are needful for the protection of life and property continue in force. — Jacobs’ Case, supra, and authorities cited ; Birmingham Railway & Electric Co. v. Baylor, 101 Ala. 498. Reversed and remanded.