Highland Avenue & Belt Railroad v. Robinson

McCLELLAN, C. J. Robinson, by next friend, prosecutes this action against the appellant railroad company. The claim is of fifteen thousand dollars damages-for that on a day named the plaintiff got upon a car belonging to -the defendant and “was wantonly and recklessly or intentionally injured'by being kicked, knocked' or shoved from said .car !by the- déféndant through its servant or agent, while the -Said car was in-motion, and' [489] in consequence thereof, plaintiff was run over and was-so badly cut, bruised and mangled that he lost one of his legs,’’ etc., etc. The gist of this complaint is that defendant’s servant .either wantonly and recklessly or intentionally inflicted the injuries complained of upom the plaintiff. What follows as to plaintiff having been kicked, knocked or shoved off a moving car, is but the-statement of the means by which the injury was inflicted ; and it is wholly immaterial so long as the injury was-wantonly and recklessly or intentionally inflicted whether it ivas effected by kicking, knocking or shoving. The plaintiff, as the complaint is to be construed, was, of course, a trespasser, and the defendant had a right to put him off its car, and while, in the exercise of this right and to its assertion and effectuation, its servant may have had the-right to shove him off, it by no means follows that he had the right 'to wantonly and recklessly or intentionally injure him by shoving him or by using any other means-to get him -off, nor does it at all follow that the company would not be liable for such injury. The averment, in other words ,involves this: that either intentionally, or, which is the same thing in legal effect, in wanton and. reckless disregard of probable consequences, the defendant shoved.the plaintiff off the car under such circumstances as that the injury which did ensue would probably ensue, and that the act was done by the defendant’s-, agent with a consciousness of the probability of such result; and this is an apt definition of wantonness and willfulness under our decisions. And taking the complaint to mean this, there is no room for the contention-of appellant -that it fails to properly -state a cause of action, because under other circumstances than such -as-probably involve injury to the plaintiff the defendant’s servants would have had the right to shove him -off the-car. The word “recklessly” when used -conjunctively with-“wantonly” always means something more than “negl-igentlv.” The two words thus conjoined can never import less than such conscious disregard -of and indifference to the probable consequences -of the act to which490 .they refer as is the legal equivalent of "willful misconduct and intentional wrong; and the assignments of demurrer which are-rested on the idea that the use here of the word “recklessly” imports negligence only are without merit. But while Avantonness and recklessness conjunctively legally import the same as intentional wrong in respect of the guilty party’s liability for resulting injury, an act may be done Avantonly and recklessly and an injury .may be Avantonly and recklessly inflicted without an intent or wish on his part to inflict the injury: the law ¡punishes not only where the act is characterized by a AÓcious intent, but also when it is committed without ..specific intent or desire to inflict injury, but with such heedless indifference to the consequences likely to ensue from it as amounts to a Avantonness and recklessness as .vicious and as justly meriting punishment as an affirmative evil intent. That damages may be recovered from an employer for injuries inflicted Avantonly and recklessly or intentionally by his employe while acting Avithin the general scope of the employment is settled by the decisions of this court. — Gilliam v. South & North Alabama Railroad Co., 70 Ala. 268; Southern Railway Co. v. Wildman, 119 Ala. 565; Postal Telegraph Co. v. Brantley, 107 Ala. 683. And in such case there may.be recovery of punitive damages. — Western Union Telegraph Co. v. Seed, 115 Ala. 670; Western Union Telegraph Co. v. Cunningham, 99 Ala. 314; Alabama Great Southern Railroad Co. v. Sellers, 93 Ala. 9; Alabama Great Southern Railroad Co. v. Frazier, 93 Ala. 45; Louisville & Nashville Railroad Co. v. Whitman, 79 Ala. 328. The fact that the person who shoved, kicked or "knocked plaintiff off the car, was the conductor of the 'train of which the car constituted a part, taken in connection with common knowledge as to the duties of a conductor, aatis quite enough to authorize the submis•sion to the jury of the question whether his conduct to-AArard the plaintiff was within the scope of his employ•ment. [491] The rulings of the trial court were in harmony with these views of the law, and its judgment must be -affirmed. Affirmed.