CONNOR, District Judge
(after stating the facts as above). Defendant’s first exception is directed to the refusal of his honor to insert in the issue the words “wantonly, carelessly, and cruelly,” used in the fourth paragraph of the complaint. The contention is based upon the proposition that plaintiff has “alleged one cause of action and proven another.” The vice in this proposition lies in the failure to note the distinction between the allegations upon which the cause of action is founded and those allegations which are material only as affecting the character and quantum of damages. The actionable facts alleged are that defendant’s servant, by a negligent act, or an act done in a negligent manner, caused the death of plaintiff’s intestate. It is entirely immaterial, for the purpose of establishing a cause of action under the provisions of Ford Campbell’s act (Revisal N. C. § 59), whether the act was wanton or cruel. “Facts showing a legal duty and the neglect thereof on the part of defendant, with a resulting injury to the plaintiff, are sufficient to constitute a cause of action.” 29 Cyc. 565. While the law imposes different degrees of care, based upon the relations existing between the parties, it adjudges that any injury resulting from a failure to observe such degree of care constitutes actionable negligence. The degree of negligence, if it be possible to define it, is of no import in fixing the liability. It may be of importance in fixing the character and quantum of damages to be awarded. A very accurate author, writing on the law of negligence, says:
“There is no matter within the range of jurisprudence that has been the subject of more troublesome controversies than the determination of the existence of the degrees of negligence.” 1 Bevin, Neg. 19; The New World v. King, 57 U. S. 469, 14 L. Ed. 1019.
Baron Rolfe, in Wilson v. Brett, 11 M. & W. 113, well says;
“That he can see no difference between negligence and gross negligence; that it is the same thing, with the addition of a vituperative epithet.”
Defendant calls our attention to authorities which hold that, when the plaintiff alleges that the act complained of has been willful, evidence showing such act to have been merely negligent constitutes a fatal variance. 29 Cyc. 588. The learned counsel insists that the [75]*75language of the complaint, in effect, charges that Burton’s conduct was willful. We do not so interpret it. “Willful” imports a much more positive affirmative mental condition prompting the act than wanton. Many judges hold, and with much reason, that “willful negligence” is a contradiction, an anomaly. “It has been generally held that willful injury is not charged by an allegation that the act was committed recklessly, wantonly, or purposely, wrongfully or unlawfully.” 2!) Cyc. 574. Xor is a charge of gross negligence equivalent to an allegation of a willful act. McAdoo v. Railroad, 105 N. C. 140, 11 S. E. 316. When it is sought to hold a master liable for the act of the servant, it is sometimes material to inquire whether the act complained of emanated from the willful or malicious state of mind of the servant. In recent times, however, the master has been held liable for the willful misconduct of his servant if in the scope of his employment (Pollock on Torts [7th Ed.] 91), abandoning the doctrine of McManus v. Crickett, 1 East. 105, and the long line of decisions based upon that case (Jaggard on Torts, 39; Sawyer v. Railroad, 141 N. C. 873, 56 S. E. 1039; Stewart v. Lumber Co., 346 N. C. 47, 59 S. E. 545). In this case the degree of negligence attributable to Burton is, in no possible point of view, material, because by the statute giving a right of action, the damages to be recovered are confined to “a fair and just compensation for the pecuniary injury resulting from the death of intestate.” Revisal, § 60. No punitive or exemplary damages can be recovered. The exceptions based upon his honor’s ruling as to the form of the issue and the supposed variance cannot he sustained. Did his honor correctly instruct the jury that, if they found the condition summarized by him, defendant’s servant was guilty of negligence as matter of law?
It is uniformly held, and may be treated as the settled practice, in both state and federal courts, that:
“When a given state of facts are such Hint reasonable men may fairly differ upon Hie question as to whether there was negligence or not, the determination of (lie matter is for the jury. It is only when Hie facts are such that alt reasonable men must draw the same conclusion from them that the question, of negligence is considered as one of law for 1he. court.” Grand Trunk Ry. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Texas & Pac. Ry. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 180.
“Questions of negligence do not become questions of law for the court, except where the facts are such that all reasonable men must draw the same conclusion from them.” Kreigh v. Westinghouse Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984; Haltom v. Railroad, 127 N. C. 255, 37 S. E. 202.
His honor, by grouping certain phases of the testimony in regard to which there was no contradiction, and eliminating all such as were controverted, said to the jury that, if they found such facts, the law imputed negligence to Burton in throwing the cross-arm from the car. He assumed, because admitted in the pleadings: That plaintiff’s intestate was at the time he was killed in the discharge of his duty and where he had a right to be. lie was not a trespasser, nor a mere licensee, but an employé of the road. He exercised due care, upon the approach of the train, by stepping from five to eight feet from the track, leaving not only room for the train to pass in safety, but for Burton to drop the cross-arm on the side of the track at a safe distance [76]*76from the cars. That the train was moving at the rate of 35 to 50 miles an hour. That Burton was the lineman of defendant, and that it was his duty to throw off at certaiu points along the track cross-arms to be used by defendant company. It was in evidence, without contradiction, that intestate and his hands for some considerable time were employed each day at the point where the injury was inflicted. The engineer, defendant’s witness, said that he saw them daily. It does not- appear how long Burton had been employed as lineman on the section of the road upon which intestate worked. In view of his hon- or’s instruction, we must eliminate the testimony tending to show that Burton either saw or could by a proper lookout have seen intestate at the time of, or immediately prior to, throwing the cross-arm; these questions being controverted and the evidence being either contradictory or capable of more than one reasonable inference. We are thus confronted with the question whether, in view of the conditions admitted by the pleadings, and found by the jury, under the instructions, it was per se negligent on the part of Burton to throw the crossbar from the open door of the baggage car at the point and under the conditions shown to exist. The instruction is not open to the criticism made by the learned counsel for defendant. His honor did not hold that:
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CONNOR, District Judge
(after stating the facts as above). Defendant’s first exception is directed to the refusal of his honor to insert in the issue the words “wantonly, carelessly, and cruelly,” used in the fourth paragraph of the complaint. The contention is based upon the proposition that plaintiff has “alleged one cause of action and proven another.” The vice in this proposition lies in the failure to note the distinction between the allegations upon which the cause of action is founded and those allegations which are material only as affecting the character and quantum of damages. The actionable facts alleged are that defendant’s servant, by a negligent act, or an act done in a negligent manner, caused the death of plaintiff’s intestate. It is entirely immaterial, for the purpose of establishing a cause of action under the provisions of Ford Campbell’s act (Revisal N. C. § 59), whether the act was wanton or cruel. “Facts showing a legal duty and the neglect thereof on the part of defendant, with a resulting injury to the plaintiff, are sufficient to constitute a cause of action.” 29 Cyc. 565. While the law imposes different degrees of care, based upon the relations existing between the parties, it adjudges that any injury resulting from a failure to observe such degree of care constitutes actionable negligence. The degree of negligence, if it be possible to define it, is of no import in fixing the liability. It may be of importance in fixing the character and quantum of damages to be awarded. A very accurate author, writing on the law of negligence, says:
“There is no matter within the range of jurisprudence that has been the subject of more troublesome controversies than the determination of the existence of the degrees of negligence.” 1 Bevin, Neg. 19; The New World v. King, 57 U. S. 469, 14 L. Ed. 1019.
Baron Rolfe, in Wilson v. Brett, 11 M. & W. 113, well says;
“That he can see no difference between negligence and gross negligence; that it is the same thing, with the addition of a vituperative epithet.”
Defendant calls our attention to authorities which hold that, when the plaintiff alleges that the act complained of has been willful, evidence showing such act to have been merely negligent constitutes a fatal variance. 29 Cyc. 588. The learned counsel insists that the [75]*75language of the complaint, in effect, charges that Burton’s conduct was willful. We do not so interpret it. “Willful” imports a much more positive affirmative mental condition prompting the act than wanton. Many judges hold, and with much reason, that “willful negligence” is a contradiction, an anomaly. “It has been generally held that willful injury is not charged by an allegation that the act was committed recklessly, wantonly, or purposely, wrongfully or unlawfully.” 2!) Cyc. 574. Xor is a charge of gross negligence equivalent to an allegation of a willful act. McAdoo v. Railroad, 105 N. C. 140, 11 S. E. 316. When it is sought to hold a master liable for the act of the servant, it is sometimes material to inquire whether the act complained of emanated from the willful or malicious state of mind of the servant. In recent times, however, the master has been held liable for the willful misconduct of his servant if in the scope of his employment (Pollock on Torts [7th Ed.] 91), abandoning the doctrine of McManus v. Crickett, 1 East. 105, and the long line of decisions based upon that case (Jaggard on Torts, 39; Sawyer v. Railroad, 141 N. C. 873, 56 S. E. 1039; Stewart v. Lumber Co., 346 N. C. 47, 59 S. E. 545). In this case the degree of negligence attributable to Burton is, in no possible point of view, material, because by the statute giving a right of action, the damages to be recovered are confined to “a fair and just compensation for the pecuniary injury resulting from the death of intestate.” Revisal, § 60. No punitive or exemplary damages can be recovered. The exceptions based upon his honor’s ruling as to the form of the issue and the supposed variance cannot he sustained. Did his honor correctly instruct the jury that, if they found the condition summarized by him, defendant’s servant was guilty of negligence as matter of law?
It is uniformly held, and may be treated as the settled practice, in both state and federal courts, that:
“When a given state of facts are such Hint reasonable men may fairly differ upon Hie question as to whether there was negligence or not, the determination of (lie matter is for the jury. It is only when Hie facts are such that alt reasonable men must draw the same conclusion from them that the question, of negligence is considered as one of law for 1he. court.” Grand Trunk Ry. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Texas & Pac. Ry. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 180.
“Questions of negligence do not become questions of law for the court, except where the facts are such that all reasonable men must draw the same conclusion from them.” Kreigh v. Westinghouse Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984; Haltom v. Railroad, 127 N. C. 255, 37 S. E. 202.
His honor, by grouping certain phases of the testimony in regard to which there was no contradiction, and eliminating all such as were controverted, said to the jury that, if they found such facts, the law imputed negligence to Burton in throwing the cross-arm from the car. He assumed, because admitted in the pleadings: That plaintiff’s intestate was at the time he was killed in the discharge of his duty and where he had a right to be. lie was not a trespasser, nor a mere licensee, but an employé of the road. He exercised due care, upon the approach of the train, by stepping from five to eight feet from the track, leaving not only room for the train to pass in safety, but for Burton to drop the cross-arm on the side of the track at a safe distance [76]*76from the cars. That the train was moving at the rate of 35 to 50 miles an hour. That Burton was the lineman of defendant, and that it was his duty to throw off at certaiu points along the track cross-arms to be used by defendant company. It was in evidence, without contradiction, that intestate and his hands for some considerable time were employed each day at the point where the injury was inflicted. The engineer, defendant’s witness, said that he saw them daily. It does not- appear how long Burton had been employed as lineman on the section of the road upon which intestate worked. In view of his hon- or’s instruction, we must eliminate the testimony tending to show that Burton either saw or could by a proper lookout have seen intestate at the time of, or immediately prior to, throwing the cross-arm; these questions being controverted and the evidence being either contradictory or capable of more than one reasonable inference. We are thus confronted with the question whether, in view of the conditions admitted by the pleadings, and found by the jury, under the instructions, it was per se negligent on the part of Burton to throw the crossbar from the open door of the baggage car at the point and under the conditions shown to exist. The instruction is not open to the criticism made by the learned counsel for defendant. His honor did not hold that:
“It is negligence as a matter of law for a person to throw from a moving train, in .the open country, any object likely to do harm, without regard to where the train is, or whether persons are actually near the railroad, or likely to be near.”
No such question was involved in the record, nor presented by the evidence. Courts deal with concrete cases, and not with academic discussions. His honor said that if certain averments, sustained by testimony, were found to be true, they established negligence as a matter of law. It cannot be doubted that Burton owed the duty to exercise reasonable care, or that degree of care which a reasonably prudent man under the same or similar circumstances would exercise to avoid injuring any person rightfully on, or near to, the track. The standard of duty is thus laid down by the Supreme Court:
“Negligence is the failure to do what a reasonable and prudent per'son would ordinarily have done under the circumstances of the situation, or doing what such person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion.” Railroad Co. v. Jones, 95 U. S. 439, 24 L, Ed. 506.
Since the decision of Russell v. Railroad, 118 N. C. 1098, 24 S. 512, this standard of duty has obtained in the courts of North Carolina - — sometimes called the rule of the "ideal prudent man.” "Legal negligence is the absence of that degree of care which the law requires a man to exercise under the peculiar circumstances in which he may he placed for the time being, or the party charged with the injury must act like a man of ordinary prudence would under similar circumstan.ces.” Brinkley v. Railroad, 126 N. C. 88, 35 S. E. 238.
We concur with his honor that, applying this standard to Burton’s -conduct, he, was guilty of negligence. To throw from a rapidfy moving train without looking, or without being able, to see whether a per[77]*77son whose duty it was to be somewhere along a section of six miles of the track and who was daily at some such point, two pieces of timber 8 feet long and weighing 35 pounds, nailed across each other with sufficient force to project it from 5 to 8 feet beyond the track and crush the body', break the neck of a human being, is, to put it mildly, negligent, without due care, and in disregard to a plain duty. It is inconceivable that the “ideal prudent man” under like _ circumstances could act with such disregard of consequences. Conceding that it was lawful and proper for him to drop the cross-arm at or near to the side of the track, certainly it was not necessary to accomplish that end to throw it with such force as to make it a deadly missile. It is not unreasonable to infer that Burton was familiar with the track, that he had passed over it before in the discharge of his duty. He certainly knew that at the point at which he threw the cross-arm there was a necessity for it; that the one then in use was to he replaced. It is a reasonable inference that he had recently been there. However this may be, it was his duty to exercise a reasonable degree of care to avoid injuring persons whose duty called them to be near to the track. Assuming that, either by reason of the curve, the cut, the “lay of the land,” or the rapidity of the train, he could not see that intestate was near the track, these conditions should have made him more careful to avoid giving the cross-bar such momentum as to endanger human life. A man may not discharge a deadly weapon into a dark space; where people have a right to be, and avoid the consequences of his act by saying that, by reason of the darkness, he could not see the victim of his negligent conduct. The conditions by which he was surrounded imposed a higher degree of care to avoid injuring another by his conduct. If he saw the injured person and shot, lie would be guilty of murder. If he could have seen him by the exercise of reasonable care and failed to do so, and shot, he would he guilty of manslaughter, if he could not see, hut knew that persons were probably there, had duties which called them to he there, he would he guilty at the least of negligence.
Mr. Justice Moody in Atchison, etc., R. R. v. Calhoun, 318 U. S. 1, 29 Sup. Ct. 331,, 53 R. Ed. 671, quotes with approval the language of Sir Frederick Bollock:
“Tlie reasonable man, then, to whoso ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely probable. He will order his precaution by the measure of what appears likelv In the known course of tilings." Pollock on Torts (8th Ed.) 41.
In applying this language to the facts ill that case,,the learned justice says:
“In judging of the defend;)id's conduct, attention must be paid to the place where the truck was left. If it had been where the passengers were at all likely to got on or off the train and a passenger stumbled over it to his hurt, there could be no doubt of the liability of the railroad.”
So, in the case before us, if the point at which the cross-arm was thrown was one at which no employe was “at all likely” to he, the duty of prevision would not as a matter of law be imposed. It would be [78]*78at least a question for the jury, but it is established beyond question, and we know as of common knowledge that on our great trunk lines of railroads common prudence, if not positive law, requires the section hands to be constantly passing over and frequently working upon each section of the track. It would be trifling with the court to say that a lineman of defendant company, whose duty it was to pass over the road frequently, did not know this condition. It would be to impute to defendant negligence in the selection of its servant to suggest that it employed a lineman, who was not reasonably familiar with this condition. Viewed from any possible point of view, Burton was negligent in the manner in which he threw the cross-arm from the moving car.
Defendant strongly urges upon us the argument that he could not reasonably have anticipated that intestate would be at the place at which he threw the cross-arm. This is not the test of liability for the result of a negligent act. If the character of the act is doubtful, the question of reasonable apprehension enters into the problem of liability^for a neglect of the duty of prevision; but, if the conditions are such as to impose the duty in respect to the public, it is of no moment whether the negligent actor could have reasonably anticipated the presence of the person injured at the time and place. This element of actionable negligence has sometimes been obscured by failing to keep this distinction in view. In Smith v. London L. W. Ry. Co., L. R-, 6 C. P. 21, Blackburn, J., said:
‘‘What the defendants might reasonably anticipate is only mai erial with reference to the question whether the defendants were negligent or not and cannot alter their liability if they were guilty of negligence. If the negligence were once established, it would be no answer that it'did much more damage than was expected. If a man fires a gun across the road, where he may reasonably anticipate that persons will be passing, he is guilty of negligence and liable for the injury he has caused: but, if he fires in his own wood, where he cannot reasonably anticipate that any one will be, he is not liable to any one whom he shoots, which shows that what a person may reasonably anticipate is important in considering whether he has 'been negligent.”
Mr. Bevin, after a careful review of the authorities, says:
“When negligence is once shown to exist, it carries a liabilitjr for the consequences arising from it, whether they be greater or less, unül the intervention of some diverting force, or until the force put in motion by the negligence has itself become exhausted.” 1 Neg. 88..
“A tort feasor is liable for all injuries resulting directly from his wrongful act, whether they could or could not have been seen by him. * * * The real question in these cases is: Did the wrongful conduct produce the injury complained of, and not whether the party committing the act could have anticipated the result.” Hale on Damages, 30-8; Ramsbottom v. Railroad, 138 N. C. 38, 50 S. E. 448; Johnson v. Railroad, 140 N. O. 574, 53 S. E. 302.
The presence of the deceased at the point where the cross-arm was thrown did not affect the legal quality or character of the act. The other conditions made the act wrongful. The impact between the cross-arm and the body of the deceased gave to him a cause of action, and his death, from such impact, by virtue of the statute, gave to plaintiff a cause of action, with the right to recover such damages as ensued from his death. We have examined Bletcher v. B. & O. R. R., [79]*79168 U. S. 135, 18 Sup. Ct. 35, 43 1,. Ed. 411. Nothing said in that case conflicts with the ruling of his honor or our conclusion. There the court below passed judgment of nonsuit, and the sole question was whether there was any evidence sufficient to carry the case to the jury. No other question was raised by the exception. There were a number of controverted questions of fact upon the finding of which the liability of defendant depended. Here the sole question was one of law upon practically conceded facts.
Upon a careful examination of the entire record we find no reversible error.
The judgment must be affirmed.