Chicago, St. Louis & Pittsburgh Railroad v. Nash

Black, C. J. This was an action brought by the appellee against the appellant to recover the value of a horse killed by the latter. The complaint was in two paragraphs. The appellant demurred separately to each paragraph. The demurrers were overruled, and these rulings are assigned as errors. The allegations of the first paragraph, reciting them in substance, so far as is necessary to illustrate appellant’s ob — 300 — jections, were that the appellant, by its agents and employes, wilfully and willingly ran its morning passenger and mail train and locomotive, going south, at and against the animal, at a point on its line of railroad about one-half mile northwest of the town of Crown Point; and then and there said agents and employes of the appellant did wilfully and willingly, with said locomotive, and train of cars attached thereto, strike, and they did then and thereby wilfully and willingly kill said animal, etc.; which point, on said railroad, of contact and killing was and is in Center township, of Lake county, in this State. It was further averred that the killing of the animal was without the appellee’s fault, carelessness, or negligence, and that he did not in any way contribute to the same, etc. Counsel for the appellant insist that the allegation in this paragraph, that the appellant’s servants “ wilfully and willingly killed” the animal was not sufficient to show an intentional killing, and that in addition to such an allegation it was necessary to allege that the killing was wrongful. The word “ wilfully,” in its ordinary uses, means by design ; on purpose; with set purpose; intentionally; in an obstinate manner; as being governed by the will, without regard to reason, or without yielding to reason. The word “ willingly ” is a weaker word, meaning voluntarily ; readily ; without reluctance; in the manner of being ready to do an act; of free choice ; with one’s free choice or consent; with a mind inclined or favorably disposed to an act. To say that an act has been done wilfully and willingly, is to indicate that it has been done intentionally, and implies that the person doing it knew what he was doing, and acted from choice as a free agent. Such an allegation is inconsistent with the idea of accident, mistake, inadvertence, negligence. It implies that the will was a party to the act, and that the act was done, not — 301 — because of doubt or uncertainty as to tbe right or proper course to be pursued, but without adequate reasonable cause. The common use of the word “ wilfully ” in the English language is in a sense denoting with intention. Campbell, C. J., in Regina v. Badger, 6 E. & B. 137. The expression in a statute, “ wilfully hold over,” was held to imply, not only a holding over after the term has expired, but a holding over in the absence of a bona fide belief on the part of the tenant that he is justified by the circumstances in so doing. Cockburn, C. J., in Swinfen v. Bacon, 6 H. & N. 846. “ ‘ Wilfully,’ in the ordinary sense in which it is used in statutes, means not merely ‘ voluntarily,’ but with a bad purpose.” Commonwealth v. Kneeland, 20 Pick. 206 (220). “A. wilful act is one done designedly, intentionally or purposely, as contradistinguished from accident, inadvertence or absence of intention or design.” Commonwealth v. Perrier, 3 Phila. 229 (232). “Wilful misconduct means misconduct to which the will is a party, something opposed to accident or negligence.” Lewis v. Great Western R. W. Co., 3 L. R. Q. B. Div. 195 (206). Doing, or omitting to do, a thing “ knowingly and willingly,” implies not only a knowledge of the thing, but a determination with a bad purpose to do it, or to omit doing it. Felton v. United States, 96 U. S. 699. “ The word wilful frequently means more than a mere intention. * * * It sometimes is used to mean perverse, deliberate design, and malice.” Wales v. Miner, 89 Ind. 118 (128). In Pittsburgh, etc., R. W. Co. v. Stuart, 71 Ind. 500 (507-8), Howk, J., uses the following language : “ We are clearly of the opinion that this evidence did not even tend to prove that the appellee’s horse was injured by or through the carelessness and negligence, and certainly not wilfulness, of the agents or servants of the appellant.” In Carter v. Louisville, etc., R. W. Co., 98 Ind. 552 (555), — 302 — speaking of a complaint, it was said : “ There was, according to the averments, that ‘ something more than mere negligence/ which evinces wilfulness, a purpose to injure.” It is true, that to entitle one to recover for an injury to which his own negligence has contributed, the injurious act 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 probable consequence would be to produce injury to others. There must have been, in such case, an actual or a constructive intent to commit the injury. In a complaint for such an injury there must be language which can be construed as charging that the person or persons who did the injurious act had an intent, either actual or constructive, to commit the injury. Belt R. R., etc., Co. v. Mann, 107 Ind. 89. “ There may be a wilful act, in a legal sense, without a formed and direct intention to kill or wound any particular person. Theremay, in other words, be a constructive oran implied intent without an express one.” Palmer v. Chicago, etc., R. R. Co., 112 Ind. 250. “ As a matter of evidence, proof that the misconduct of the defendant was such as to evince an utter disregard of consequences, so as to imply a willingness to inflict the injury complained of may tend to establish wilfulness on the part of the defendant.” Cincinnati, etc., R. R. Co. v. Eaton, 53 Ind. 307. The reports abound in the expressions, “ wilful injury,” “wilful misconduct,” “injury wilfully inflicted,” “wilful or purposed,” “ purposely or wilfully,” “ wilful tort,” “ wilful or intentional wrong,” “ wilfulness,”_ etc.; and the word “ wilfully,” used as in the paragraph of complaint under consideration, has such an undei’stood and accepted meaning in pleading that by its use in such manner the act in connection with which it is used is characterized as having been intentionally, purposely and tortiously done. It is not necessary in such an action to use words indicat — 303 — ing an act amounting to a crime or importing actual malice toward the owner of property injured. This objection to the complaint is not well taken. The same may be said of the objection made by the appellant, that the complaint does not show that the animal was rights fully on its track. In a complaint for wilful injury, it is not necessary to show that the plaintiff was without contributory fault, or that an animal so injured was rightfully upon the track. Town of Salem v. Goller, 76 Ind. 291; Norris v. Casel, 90 Ind. 143; Terre Haute, etc., R. R. Co. v. Graham, 95 Ind. 286; Chicago, etc., R. R. Co. v. Hedges, 105 Ind. 398; Palmer v. Chicago, etc., R. R. Co., supra; Ohio, etc., R. W. Co. v. Walker, 113 Ind. 196; Hanna v. Terre Haute, etc., R. R. Co., 119 Ind. 316. It is also contended that this paragraph does not sufficiently allege that the animal was upon the railroad track. It is alleged that the appellant ran its morning passenger and mail train and locomotive, going south, at and against, etc., at a point on its line of railroad, etc., which point on said railroad of contact and killing, was, etc. We think this was sufficient. There was no error in overruling the demurrer to the first paragraph. In the second paragraph it was alleged that the appellant, by its agents and employes running and operating its morning passenger train going east, on, etc., in, etc., by the locomotive and ears attached thereto, ran against, over and killed the animal, etc.; that said agents and employes as aforesaid carelessly and negligently ran said locomotive and cars over and killed the said animal, without any fault or want of care by the appellee, and he did not contribute to said injury; that said animal was killed at a road crossing, and she was in plain view of the engineer on said track for more than one-half a mile, and he, knowing that said animal was on the railroad, did not give any alarm of the whistle or any danger signal, to frighten said animal from the track, and did not — 304 — slacken the speed of his train, but ran against her at full speed and killed her, etc. It is insisted by the appellant that the specific allegations of this paragraph overcome the general allegations of negligence of the appellant and freedom from fault on the part of the appellee. It -is contended that the specific allegations admit as a fair inference therefrom that the appellee’s fault contributed to the killing of the animal, and fail to show facts constituting negligence on the part of the appellant. It is argued that the allegation that the animal was killed at a road crossing shows that the appellee was guilty of contributory negligence. It was not impossible for the animal-to be at a road crossing without the fault of the appellee ; and he alleged that he was without fault or want of care, and did not contribute to the injury. Counsel have quoted a well expressed statement of the law as established in this State, from the opinion in Hanna v. Terre Haute, etc., R. R. Co., supra, concerning the contributory negligence of owners of animals who abandon them to the hazard of being injured on a railroad crossing by permitting them to roam at large in the vicinity of such a place, but that statement was made in commenting upon the evidence, and not in reference to a complaint. In such a pleading the allegation that the plaintiff was without fault, like the general averment of negligence on the part of the defendant, has a technical significance, and admits proof of any facts tending to show its truth. Town of Salem v. Goller, supra. In that case,an action to recover for a personal injury received by falling, from a sidewalk into an open cellar, the fact that the complaint showed that the plaintiff was blind was not allowed to overcome the general averment that he was without fault or negligence. An inference of contributory negligence on the part of the appellee does not arise as a necessary legal conclusion from the mere fact that the animal was upon a railroad cross — 305 — ing, and the averment of that fact in the complaint is not inconsistent with the general allegation that the appellee was^ without fault, and does not overcome its effectiveness as a-material allegation of the pleading. Pittsburgh, etc., R. W. Co. v. Wright, 80 Ind. 182; Louisville, etc., R. W. Co. v. Head, 80 Ind. 117; Wilson v. Trafalgar, etc., Co., 83 Ind. 326; Toledo, etc., R. W. Co. v. Brannagan, 75 Ind. 490; Rogers v. Overton, 87 Ind. 410. The general averment that the plaintiff was without fault is sufficient, unless the facts specially pleaded clearly show that he was chargeable with contributory negligence. Ohio, etc., R. W. Co. v. Walker, supra. If the specific allegations unnecessarily added to the general averments in this paragraph would not be sufficient of themselves to show that the injury was occasioned by the appellant’s negligence, as to which we make no particular examination and express no opinion, they do not show the contrary necessarily. If not full enough of themselves, they are not incompatible with the general allegation of negligence, which is itself sufficient. Boyce v. Fitzpatrick, 80 Ind. 526; Louisville, etc., R. W. Co. v. Jones, 108 Ind. 551; George H. Hammond & Co. v. Schweitzer, 112 Ind. 246; Ohio, etc., R. W. Co. v. Walker, supra. The appellant’s counsel earnestly and forcibly contend that the verdict is not sustained by sufficient evidence. There certainly was evidence tending to prove want of ordinary care on the part of the employes of the appellant upon the locomotive. There was evidence that it was a clear, bright day; that at the distance of half a mile or more before they reached the crossing, and while passing over that interval, they might have seen the animal plainly in the immediate vicinity of the railroad crossing, grazing and approaching the crossing; and that for the distance of eighty rods they might have seen the animal distinctly, in the place and position of danger in which she was struck; and yet that they — 306 — did not give the usual alarms, or stock signals, to frighten her away. The engineer testified that he was looking straight ahead; that he did not see the animal until the train was about one hundred feet from the crossing ; that the first intimation he had was the fireman’s saying, “ Look' out for the horse! ” and that he then put on the air-brake. The fireman was not a witness. We can not say that the evidence did not authorize a finding of want of ordinary care on the part of the appellant. But counsel for appellant insist that, as it appeared that the animal was killed upon a public crossing, there could be no recovery except for a wilful killing; that the animal was shown to be a trespasser upon appellant’s right of way, and that therefore its owner, the appellee, was chargeable with contributory negligence. Counsel say that the Supreme Court of this State “ has often and uniformly held that if the owner of stock permits it to run at large, and it is injured upon a highway crossing^ he can not recover, even though the railroad company is guilty of negligence in the infliction of the injury.” And counsel ask : “ Should the rule be different when the animal escapes from the owner ?” There was no evidence of an order of the board of county commissioners allowing animals to run at large. The evidence showed that on the morning of the day on which the animal was killed, the appellee left her at his home, about twenty rods from the railroad, in a yard enclosed with a good fence, where he had been keeping her for a week or or two, she being heavy with foal; and that she was killed about half past ten o’clock in the forenoon. The question is presented whether the owner of a domestic animal, which has escaped from a well-fenced enclosure where he has confined it, and which has strayed to a railway track, at a public crossing, and which has there been killed by a passing train through the negligence of the employes — 307 — of the railway company managing the train, can recover for such injury, no order of the county board allowing such an animal to run at large being shown. There has been lack of harmony between the decisions upon this subject in different jurisdictions. Although there may be found in the opinions of judges in this State dicta which favor the view that in such case the owner can not recover, we do not find that any case has been decided upon such theory. It has been decided many times that the common law obligation of the owner of domestic animals not to suffer them to run at large is in force in this State, where there is no order of the board of county commissioners allowing such animals to run at large. It has often been held that where the owner of such animals permits them to run at large in the vicinity of a public railway crossing, his negligence in so doing will be imputed as contributory fault, and will prevent recovery by him for injury to the animals by passing trains, unless the injury be wilful. The decisions of courts of other States holding the owner of animals chargeable with contributory fault because of their presence on a public railway crossing, though he had used reasonable care and exercised reasonable diligence to keep the animals upon his own premises in a properly fenced enclosure, from which they had escaped without his knowledge or consent, have been referred to with approval by judges of this State. Also, it has been said to be doubtful as to whether the owner has a right to recover in such a case for negligent injury. But the decisions in this State have proceeded upon some other grounds. We think it may be said to be the law in this State, that where an order of the board of county commissioners authorizes the animal to run at large, the owner is not prevented from recovering for negligent injury to the animal at a public railway crossing by the mere fact that he permitted it to run — 308 — at large. That will not be imputed as contributory fault. To preclude recovery, he must have been at fault, and being authorized to turn out his animal to run at large, the mere fact that the animal has gone unattended to a railway crossing will not constitute negligence in the owner. But if he voluntarily, carelessly and rashly permit it to roam at large, unattended, in the vicinity of the railroad where the railroad company can not be required to fence in its track, he will be chargeable with contributory negligence, notwithstanding the existence of such an order of the county board, if the animal be killed at such a place on the railroad track by the negligent management of a train passing thereon. The mere act of the animal is not imputed to its owner as contributory negligence in such a case; he is chargeable with actual fault. If there be no such order of the county board, it will be the owner’s own fault if he voluntarily permit his animal to run at large unattended, whether it be to roam in the vicinity of a railroad or elsewhere; and if the animal so turned out to run at large wander to a railway crossing upon a highway? and be there injured by a passing train, the owner’s fault in turning it out to run at large will prevent recovery by him for the injury, unless it has been inflicted through the actual or implied wilfulness of the agents or employees of the railroad company in the management of the train. Whether there be such an order of the county board or not, if the owner of a domestic animal carefully confines it in a well fenced enclosure or other properly secured place, and without his knowledge or actual fault the animal escapes therefrom and wanders unattended to a public railway crossing, and be there injured by a passing train through want of ordinary care on the part of the agents or employes of the railway company in the management of the train, the presence of the animal upon the crossing will not be imputed to its owner as his contributory fault, and he may recover of the railroad company for his loss. — 309 — In such case, the animal loitering upon the track at a public crossing is no more a trespasser than is the animal in the case where the owner, under authority of an order of the county board, has turned it out to run at large, and it wanders to and loiters upon the crossing without his fault. The railroad company has not the exclusive right to the possession of a public crossing. It has the right of passage, and it may drive or frighten the animal from its track, but in doing so it is not relieved from the obligation to exercise ordinary care. . The company is not bound to undergo unreasonable delay which will prevent the making of connections or the keeping of schedule time, or to risk the danger of collision between its trains. It is simply bound to deal with the animal with reasonable care. The paramount duty of the railroad company is toward its passengers. It also should be held to reasonable care concerning animals which may be upon its crossing without f^ult on the part of their owners. It can not be said that it owes no duty whatever in such case other than not to wilfully injure property. These rules are reasonable and fair both to the railroad company and to the owners of injured animals. They do not unreasonably interfere with the transaction of- the business of the company. They tend to secure care and diligence on the part of the owners of animals, and to promote the safety of passengers and railway employes engaged in the running of trains. They are in harmony with the tendency of the decisions in many other jurisdictions. Whether they be based upon the wisest consideration of the relative rights and duties of railroad companies and the owners of domestic animals or not, we are bound to state the law as we find it, and that such is the law in this State on this subject we think must be concluded from a careful examination of the decisions. Lafayette, etc., R. R. Co. v. Shriner, 6 Ind. 141; Indianapolis, etc., R. R. Co. v. Kinney, 8 Ind. 402; Indianapolis, etc., R. R. Co. v. Caldwell, 9 Ind. — 310 — 397; Indiana Central R. W. Co. v. Gapen, 10 Ind. 292; Knight v. Toledo, etc., R. W. Co., 24 Ind. 402; Indianapolis, etc., R. R. Co. v. McClure, 26 Ind. 370; Michigan, etc., R. R. Co. v. Fisher, 27 Ind. 96; Indianapolis, etc., R. R. Co. v. Harter, 38 Ind. 557; Jeffersonville, etc., R. R. Co. v. Huber, 42 Ind. 173; Jeffersonville, etc., R. R. Co. v. Adams, 43 Ind. 402; Indianapolis, etc., R. R. Co. v. Hamilton, 44 Ind. 76; Pennsylvania Co. v. Krick, 47 Ind. 368; Jeffersonville, etc., R. R. Co. v. Underhill, 48 Ind. 389; Cincinnati, etc., R. R. Co. v. Street, 50 Ind. 225; Indianapolis, etc., R. W. Co. v. Caudle, 60 Ind. 112; Pittsburgh, etc., R. W. Co. v. Stuart, 71 Ind. 500; Wabash, etc., R. W. Co. v. Nice, 99 Ind. 152; Cincinnati, etc., R. W. Co. v. Hiltzhauer, 99 Ind. 486; Lyons v. Terre Haute, etc., R. R. Co., 101 Ind. 419; Hanna v. Terre Haute, etc., R. R. Co., supra; Louisville, etc., R. W. Co. v. Green, 120 Ind. 367. Under the circumstances disclosed by the evidence, it was the duty of appellant’s servants upon the locomotive to have seen the animal at such a distance that they could have made efforts calculated to cause it to remove from its exposed position. Proper regard for the safety of human life, and proper consideration for the interests of others, forbid that persons so occupied under circumstances such as are shown in this case shall be so inattentive as to be wholly unaware of the presence of such an obstruction upon the track until the locomotive has approached so near to it, or so careless and indifferent as to make no effort whatever to clear the track and save the endangered property of others so situated. If the animal had been seen, it would have been the duty of the appellant’s servants to have made a reasonable effort to cause it to get out of the way and to avoid a collision with it. If there was no excuse for not seeing the animal, there was no excuse for not making some effort to cause it to leave the track; and the fact that the animal was not seen can not exonerate the appellant from responsibility for the — 311 — failure to make such an effort. Such failure was a violation of duty. If it was nothing more than negligence, still the appellant must be held responsible for the consequent injury, there being no contributory negligence on the part of the appellee. Filed May 2, 1891. The court did not err in overruling the motion for a new trial. The judgment is affirmed, with costs.