Indianapolis & Vincennes R. R. v. McClaren

62 Ind. 566

• Court: Indiana Supreme Court
• Decided: November 15, 1877
• Status: Published

Opinions

Perkins, J.

The appellee was plaintiff in an action against appellant to recover damages against defendant for 'killing William Alger.

The complaint alleged that the deceased was upon a railroad switch belonging to tíre defendant, in the town of Worthington, which switch was not used for the purpose of running the trains into said town, but was used for the purpose of switching off the cars and trains, after the same had been stopped at the depot of said town, and the public used the switch for a footway. While said Alger was on said switch the defendant did, on the 8th day of May, 1871, wilfully, carelessly and Avith gross negligence, run a locomotive and train upon and over and killed said Alger.

“ Wilfulness and gross negligence ” are distinctly charged in the second paragraph of the complaint.

A trial of the issues formed resulted in a verdict for plaintiff for four thousand five hundred dollars.

The jury found a general verdict, and also answered interrogatories. The defendant moved for judgment in its favor on the answers, notwithstanding the general verdict. This being overruled, the defendant moved for a new trial, which was overruled and judgment rendered upon the A verdict for four thousand five hundred dollars and costs.

The facts touching the killing were these: Alger entered upon the railroad track, and walked upon it thirty yards, in front of a train, before the train struck him; the train was running at the rate of three miles an hour, and did not increase its speed; the bell upon the engine was constantly ringing; the track was clear of other obstructions ; the deceased Avas a middle-aged man, in possession of the senses of sight and hearing and the power of locomotion ; the employees on the engine were all on duty the deceased remained on the track till struck by the pilot on the front of the engine; and there was nothing to prevent him from stepping off' the track at will. As the train was moving at the rate of but three miles an hour, less than the rate of speed at which men ordinarily walk upon a smooth land surface, deceased must have been moving very leisurely, and could, at any moment, by a side step or two, have left the track, while the locomotive and cars were compelled to continue on it. It is conceded by the appellee, that such contributory negligence was shown as precluded a recovery on account of simple negligence on the part of the railroad company. The Terre Haute, etc., R. R. Co. v. Graham, 46 Ind. 239. But, he says, “ The second paragraph charges gross negligence and wilfulness, and we submit that the fact of the plaintiff being on the track of the defendant’s road will not bar his right to recover for an injury resulting from the wilfulness or gross negligence of the defendant. None of the authorities go to such extent.”

Conceding this proposition to be true, it remains for us to inquire whether there was any evidence from which the jury might have inferred such wilfulness. We discard the term gross negligence. Wilfully and purposely are preferable, as they have a more definite meaning, and the act done must come within that meaning. In The Cincinnati, etc., R. R. Co. v. Eaton, 53 Ind. 307, it is said : “ It is alleged that the train was run ‘ recklessly and with gross negligence,’ and that, by means of said ‘ reckless ness and gross negligence,’ the engine ran against the deceased. This does not imply that the injury was inflicted either purposely or wilfully.” In the case before us the word “ wilfully” is used. The l’ailroad company may be liable for the wilful acts of its employees, The Jeffersonville R. R. Co. v. Rogers, 38 Ind. 116; and their conduct in the management of the train, where injury results, may be given in evidence as tending to show that the injury was wilfully and purposely inflicted. The only fact, from which an inference that the injury in this case was so inflicted could have been drawn, was, that the managers of the train did not stop it, some little time before overtaking the deceased, and send hands enough to take him off the track, and hold him till the train passed.

The question of law is, was such the duty of the railroad company ? If it was, it was so because the presumption is that a person on a railroad track, in front of an approaching train, will not leave the track, but remain upon it and be killed, if such person is not forcibly removed from it. If such is the general presumption, then it may be the duty of a railroad train to come to a dead stop at a distance far enough from a person observed upon the track to enable it to send a force and remove him from the track, before the train passes. This practice would necessarily render railroad transportation so slow as to lead to its abandonment, and a return to the old methods of transportation by muscular power, with the aid of wagons, etc., which vehicles may pass around and avoid obstructions in their path. We do not believe the general presumption is as above stated. We believe the presumption to be, that a trespasser upon a railroad track, when he discovers a train approaching, will, from a care of his personal safety, if not from a sense of duty, leave the track before the train reaches him, and that the managers of trains may act upon that presumption.

There is nothing in the evidence from which wilfulness •could be inferred.

The judgment is reversed, with costs, and the cause remanded for a new trial.