START, O. J.
This is an appeal from an order of the district court of the county of Pope overruling the defendant’s demurrer to the complaint in this a personal injury action.
The here material allegations of the complaint, as summarized in the brief of counsel for the plaintiff, are these: “On the 18th day of October, 1906, respondent was severely injured by being run into by an extra or special train of appellant, consisting of a locomotive and a caboose, while he was standing on appellant’s right of way at the village and station of Kensington, intently absorbed in watching some excavation processes carried on by appellant by a steam shovel, engine, and crew on its said right of way, immediately north of its main track, which latter ran through the village in an east and .west direction.
“The appellant’s depot was situated immediately south of the main track, and the excavations were practically north of the depot. Two public highways and village streets, Kensington avenue and Central avenue, ran in a north and south direction west of the depot, and were crossed by the main track on the level; the former about three hundred, and the latter about one hundred, feet west of the depot. These two streets were much traveled, and the only means of communication between the two portions into which the village was divided by defendant’s railway line. Appellant’s right of way in the village had [226] never been fenced in or in any manner shut off from the public, but that portion of the same situated between said Central avenue and the depot had for many years, with appellant’s knowledge and consent, been used and traveled by the public as the only means of ingress to and egress from appellant’s depot, and as the only means of communication between said depot and said Central avenue.
“Respondent intended to seek employment with the appellant in and about said excavation work, and he was watching the same with that end in view. He stood north of and close to the track, and between the track and the bank formed by the excavations, some fifty feet west of the depot, facing northeast, or in the direction of the steam shovel, and with his back to the west. The main track was practically straight and level for a distance of about one mile west of the depot, and respondent’s position was such that he was plainly visible from the cab of an engine approaching from the west during all the time it would require to traverse that distance. At the point where respondent stood the noise of the steam shovel and engine was so great and deafening as to completely drown and overcome the ordinary noise of qp approaching engine or train. It was appellant’s custom and duty toring the bell and blow the whistle of its locomotive before crossing said two village streets, and to keep a constant lookout for persons or other objects that might be on appellant’s right of way at or in the vicinity of said two village streets, and between said Central avenue and said depot, so as to avoid running into or over such persons or objects.
"On the said 18th day of October, 1906, while respondent was, and for a period of from five to six minutes had been, so standing at said point of appellant’s right of way, intently absorbed in watching the operations of said steam shovel, and oblivious and unaware of the approaching of any locomotive on appellant’s line from the west, one of appellant’s locomotives did approach from the west at a great and dangerous rate of speed, and passed through said village of Kensington, crossing said two village streets, without giving any signal or warning of its approach by bell or whistle, and ‘the servants of the defendant in charge of said locomotive, although they knew, or in the exercise of ordinary care on their part could readily have known or ascertained, that plaintiff was in said exposed and. dangerous position, [227] and oblivious to and unaware of the approach of said locomotive, nevertheless failed to check the progress of said locomotive, and failed and neglected to give any signal or warning of its approach, but, on the contrary, carelessly and negligently and wantonly and recklessly ran and operated said locomotive at a great and .dangerous rate of speed over and across said highways, and through said village, and upon and against said plaintiff, whereby plaintiff was then and there with great force and violence struck by said locomotive and hurled in the air for a distance of many feet, and with great force and violence thrown into said excavation.’ ”
It is too obvious for argument that these allegations charge the defendant with negligence. It is also clear from the complaint that the plaintiff, at the time he was struck and injured, was standing on the defendant’s right of way and so near to the rails that the locomotive in passing struck him. He was then absorbed in watching the operations of a steam shovel, and oblivious and unaware of the approach of the locomotive, although his view to the west, whence the locomotive came, was unobstructed for a mile. He was not an employee of the’ defendant, nor was he working near the rails for any one, nor was-he using the right of way for the purpose of going from the street to the depot, nor was he standing on the right of way at the invitation of the defendant, express or implied. He voluntarily located himself in a place of obvious danger for his own purposes, and while execht-' ing them he became oblivious to the approach of the locomotive be*hind him. Manifestly the complaint shows upon its face that the plaintiff was guilty of contributory negligence as a matter of law.
It follows, then, that the complaint does not state a cause of action, unless the effect of the plaintiff’s contributory negligence is obviated by allegations showing that the defendant was guilty of wilful or wanton negligence. The pleader in drafting the complaint evidently appreciated this fact, and attempted to charge the defendant with wilful, negligence. This presents the pivotal question raised by the demurrer:: Does the complaint so charge the defendant? The allegation in this-respect is that the servants of the defendant in charge of the locomo-tive, “although they knew, or in the exercise of ordinary care on their [228] part could readily have known or ascertained,” that the plaintiff was in an exposed and dangerous position, nevertheless failed to check the speed of the locomotive, or give any signal or warning of its approach. If the words we have italicized had been omitted from the complaint, it admittedly would have stated a cause of action in favor of the plaintiff, notwithstanding his own contributory negligence, because it would then allege that the defendant was guilty of wilful negligence in the premises.
It is, however, the contention of plaintiff's counsel that the defendant was guilty of such wilful negligence as would entitle him to recover, irrespective of his own negligence, if the defendant either knew or discovered, or might have known or discovered by the exercise of ordinary care, his perilous position in time to have avoided injuring him. This adds a material qualification to the doctrine of wilful negligence, as laid down by the decisions of this court, by adding thereto the alternative condition, “might have known or discovered.”
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START, O. J.
This is an appeal from an order of the district court of the county of Pope overruling the defendant’s demurrer to the complaint in this a personal injury action.
The here material allegations of the complaint, as summarized in the brief of counsel for the plaintiff, are these: “On the 18th day of October, 1906, respondent was severely injured by being run into by an extra or special train of appellant, consisting of a locomotive and a caboose, while he was standing on appellant’s right of way at the village and station of Kensington, intently absorbed in watching some excavation processes carried on by appellant by a steam shovel, engine, and crew on its said right of way, immediately north of its main track, which latter ran through the village in an east and .west direction.
“The appellant’s depot was situated immediately south of the main track, and the excavations were practically north of the depot. Two public highways and village streets, Kensington avenue and Central avenue, ran in a north and south direction west of the depot, and were crossed by the main track on the level; the former about three hundred, and the latter about one hundred, feet west of the depot. These two streets were much traveled, and the only means of communication between the two portions into which the village was divided by defendant’s railway line. Appellant’s right of way in the village had [226] never been fenced in or in any manner shut off from the public, but that portion of the same situated between said Central avenue and the depot had for many years, with appellant’s knowledge and consent, been used and traveled by the public as the only means of ingress to and egress from appellant’s depot, and as the only means of communication between said depot and said Central avenue.
“Respondent intended to seek employment with the appellant in and about said excavation work, and he was watching the same with that end in view. He stood north of and close to the track, and between the track and the bank formed by the excavations, some fifty feet west of the depot, facing northeast, or in the direction of the steam shovel, and with his back to the west. The main track was practically straight and level for a distance of about one mile west of the depot, and respondent’s position was such that he was plainly visible from the cab of an engine approaching from the west during all the time it would require to traverse that distance. At the point where respondent stood the noise of the steam shovel and engine was so great and deafening as to completely drown and overcome the ordinary noise of qp approaching engine or train. It was appellant’s custom and duty toring the bell and blow the whistle of its locomotive before crossing said two village streets, and to keep a constant lookout for persons or other objects that might be on appellant’s right of way at or in the vicinity of said two village streets, and between said Central avenue and said depot, so as to avoid running into or over such persons or objects.
"On the said 18th day of October, 1906, while respondent was, and for a period of from five to six minutes had been, so standing at said point of appellant’s right of way, intently absorbed in watching the operations of said steam shovel, and oblivious and unaware of the approaching of any locomotive on appellant’s line from the west, one of appellant’s locomotives did approach from the west at a great and dangerous rate of speed, and passed through said village of Kensington, crossing said two village streets, without giving any signal or warning of its approach by bell or whistle, and ‘the servants of the defendant in charge of said locomotive, although they knew, or in the exercise of ordinary care on their part could readily have known or ascertained, that plaintiff was in said exposed and. dangerous position, [227] and oblivious to and unaware of the approach of said locomotive, nevertheless failed to check the progress of said locomotive, and failed and neglected to give any signal or warning of its approach, but, on the contrary, carelessly and negligently and wantonly and recklessly ran and operated said locomotive at a great and .dangerous rate of speed over and across said highways, and through said village, and upon and against said plaintiff, whereby plaintiff was then and there with great force and violence struck by said locomotive and hurled in the air for a distance of many feet, and with great force and violence thrown into said excavation.’ ”
It is too obvious for argument that these allegations charge the defendant with negligence. It is also clear from the complaint that the plaintiff, at the time he was struck and injured, was standing on the defendant’s right of way and so near to the rails that the locomotive in passing struck him. He was then absorbed in watching the operations of a steam shovel, and oblivious and unaware of the approach of the locomotive, although his view to the west, whence the locomotive came, was unobstructed for a mile. He was not an employee of the’ defendant, nor was he working near the rails for any one, nor was-he using the right of way for the purpose of going from the street to the depot, nor was he standing on the right of way at the invitation of the defendant, express or implied. He voluntarily located himself in a place of obvious danger for his own purposes, and while execht-' ing them he became oblivious to the approach of the locomotive be*hind him. Manifestly the complaint shows upon its face that the plaintiff was guilty of contributory negligence as a matter of law.
It follows, then, that the complaint does not state a cause of action, unless the effect of the plaintiff’s contributory negligence is obviated by allegations showing that the defendant was guilty of wilful or wanton negligence. The pleader in drafting the complaint evidently appreciated this fact, and attempted to charge the defendant with wilful, negligence. This presents the pivotal question raised by the demurrer:: Does the complaint so charge the defendant? The allegation in this-respect is that the servants of the defendant in charge of the locomo-tive, “although they knew, or in the exercise of ordinary care on their [228] part could readily have known or ascertained,” that the plaintiff was in an exposed and dangerous position, nevertheless failed to check the speed of the locomotive, or give any signal or warning of its approach. If the words we have italicized had been omitted from the complaint, it admittedly would have stated a cause of action in favor of the plaintiff, notwithstanding his own contributory negligence, because it would then allege that the defendant was guilty of wilful negligence in the premises.
It is, however, the contention of plaintiff's counsel that the defendant was guilty of such wilful negligence as would entitle him to recover, irrespective of his own negligence, if the defendant either knew or discovered, or might have known or discovered by the exercise of ordinary care, his perilous position in time to have avoided injuring him. This adds a material qualification to the doctrine of wilful negligence, as laid down by the decisions of this court, by adding thereto the alternative condition, “might have known or discovered.”
This attempted qualification is not without the support of judicial authority in some of the states and of some text-writers. It would seem that an adoption of the qualification would in practice eliminate all distinction between ordinary negligence and wilful negligence, and permit a party guilty of contributory negligence to recover in all cases if his adversary failed to exercise ordinary care to discover whether he had been negligent and thereby placed himself in.a perilous situation. However this may be, we adhere to the rule, established by the uniform decisions of our own court, which rejects the qualification .and requires the exercise of ordinary care to avoid- the threatened injury after, and not before, discovering the peril of the party guilty of contributory negligence; or, in other words, there is a well-defined distinction between ordinary negligence and wilful or wanton negligence.
Ordinary negligence is not actionable, if the negligence of the injured party directly contributed to the result; but liability is incurred by wilful negligence, irrespective of such contributory negligence.
Wilful negligence is not simply greater negligence than that of the injured party, nor does it necessarily include the element of malice, or an actual intent to injure another; but it is a reckless disregard of [229] the safety of the person or property of another by failing, after discovering the.peril, to exercise ordinary care to prevent the impending injury. Fonda v. St. Paul City Ry. Co., 71 Minn. 438, 450, 74 N. W. 166, 70 Am. St. 341; Sloniker v. Great Northern Ry. Co., 76 Minn. 306, 79 N. W. 168; Lando v. Chicago, St. P., M. & O. Ry. Co., 81 Minn. 279, 83 N. W. 1089; Olson v. Northern Pac. Ry. Co., 84 Minn. 258, 87 N. W. 843; Alger, Smith & Co. v. Duluth-Superior T. Co., 93 Minn. 314, 101 N. W. 298; Teal v. St. Paul City Ry. Co., 96 Minn. 379, 104 N. W. 945.
We accordingly hold that the allegations of the complaint in this case, to the effect that the servants of the defendant in charge of the locomotive, in the exercise of ordinary care on their part, could readily have known or ascertained that the plaintiff was in a dangerous position in time to have prevented the impending injury, and failed so to do, do not allege wilful negligence on their part. There is, then, no clear and direct allegation that the defendant was guilty of wilful negligence.
This brings us to the question whether the alternative allegations may be rejected as surplusage. We are of the opinion that they cannot be, for the allegations are to the effect that the defendant either knew, or in the exercise of ordinary care might have known; and, inasmuch as only one of the alternative propositions constitutes wilful negligence, it is a clear case of alternative pleading, which is not permissible under any system of practice. Dunnell (Minn.) Pl. § 309; 6 Enc. Pl. & Pr. 268. Where the only effect of alternative allegations is to render the pleading indefinite or uncertain the remedy is by motion and not by general demurrer. Where, however, as in this case, the complaint alleges in the alternative two statements of fact, one of which would be legally sufficient to constitute a cause of action and the other not, they neutralize each other, and demurrer will lie. See Guile v. McNanny, 14 Minn. 391 (520), 100 Am. Dec. 244, Jamison v. King, 50 Cal. 132, and Wheeler v. Thayer, 121 Ind. 64, 22 N. E. 972. If both allegations legally meant the same thing, it would be otherwise. Clague v. Hodgson, 16 Minn. 291 (329).
It follows that the complaint does not allege facts constituting a cause of action, and that the order appealed from must be reversed, [230] and cause remanded, with leave to the plaintiff to apply to the district court, if so advised, for permission to amend his complaint.
So. ordered.