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on said locomotive was not sounded, and the bell was not rung to give warning of the approach of said locomotive; * * * that said crossing was made extrahazardous by the track being hidden from view for some distance by intervening buildings, all of which was well known to said defendant and its servants," etc. It was held that the complaint did not charge willful injury, and, in deciding the question, Mitchell, J., said: "To constitute a willful injury, the act which produces it must have been intentional, or must have been done under such circumstances as evidenced a reckless disregard for the safety of others, and a willingness to inflict the injury complained of."
In the case from which I have quoted it was held the facts charged failed to bring the case within either of the conditions expressed, or to indicate an actual or constructive intent on the part of appellant; that is, the language used in the complaint did not show that the act complained of was intentional, or that under the circumstances detailed evinced a reckless disregard for the safety of others, and a willingness to inflict the injury. "Willfulness," as used in the complaint, cannot exist without purpose or design. Parker, Adm'r, v. Pennsylvania Co., 134 Ind. 673, 34 N. E. 504, 23 L. R. A. 552; Belt, etc., Ry. Co. v. Mann, 107 Ind. 89, 7 N. E. 893. A person may be held liable for the consequences of a willful act without actual knowledge of the presence of the object acted upon, but his liability never exists where the act or omission is one from which the injury could not reasonably have been anticipated as the natural and probable consequence of such act or omission. Parker, Adm'r, v. Pennsylvania Co., supra. This statement of the law is the key to the solution of the question of willfulness as presented by the complaint.
The case I am considering presents no stronger case of willfulness than the Bryan and Mann Cases, supra. Here appellee states three facts which he insists constitute willfulness: (1) High and excessive rate of speed; (2) a public highway, crossing appellant's track, which was frequently used by the public; and (3) that appellant knew that it was so used. It may be observed that it is charged that Whiteland, through which appellant's train was being run, was an incorporated town, yet it is not charged that it was run in violation of any ordinance limiting the speed of trains within its corporate limits. This being true, appellant had the right to run its train over the crossing at any rate of speed it chose, that was not inconsistent with the safety of the "persons or things" in its charge. Lake Shore, etc., Ry. Co. v. Barnes (Ind. Sup.) 76 N. E. 629, and authorities there cited.
In the case last cited the action was based upon negligence, and the negligence charged was in running a train of cars at a high and dangerous rate of speed over a 78 N.E.-63
crossing of the "Michigan Road, and that said Michigan Road was at the time the main highway between the city of South Bend and the town of New Carlisle, and a great many persons were constantly traveling said highway and crossing said tracks," etc. The court in that case said: "But no attempt is made to set up in the paragraph under consideration an exceptional crossing, except as to the number of persons using it. * * * The number of persons daily passing or repassing over the crossing * * * cannot affect the rights and duties of appellant at the crossing, in the absence of any showing that the number was known to be so great as to impede progress, or in some other way make the crossing more difficult and dangerous to travelers. Persons having eyes and ears must use them at grade crossings, each for himself, whether alone or in a great company, and, when by the exercise of due care each may escape injury, it makes no difference in the company's right to speed its train over a crossing whether there is one or many in the act, or about to pass over the same." I recognize the fact that in that case the court was dealing with a question of negligence, and not a question of willfulness. I also recognize that, in an action to recover damages resulting from a willful act, the question of negligence on the part of the defendant and contributing negligence on the part of the plaintiff are eliminated. The fact that "large numbers of vehicles and foot passengers" passed over the crossing, and the fact that with a knowledge of that fact appellant ran its train at a speed of 60 miles an hour, do not, in my judgment, constitute willfulness, within the meaning of that term. The expression "large numbers of vehicles and foot passengers" is but a relative term. It is too indefinite to have any fixed meaning in a pleading. Lake Shore, etc., Ry. Co. v. Barnes, supra. The language used in this complaint descriptive of the surroundings and conditions and the acts of the appellant is so similar to that used in the Barnes Case, supra, that there is no distinction to be drawn, except here the language used and facts stated are made the basis of a willful act, while in that case they are made the basis of a negligent act. The employés in charge of appellant's train had a right to presume that a traveler on the public highway approaching and intending to cross its track would both look and listen for an approaching train. There is no charge in the complaint that the train was late or running out of its schedule time, or at a greater rate of speed than that which it was scheduled to
There is a line of cases holding that in a complaint which seeks redress for a willful injury, involving, as it does, conduct which is quasi criminal, it must be averred that the injurious act was purposely and intentionally committed with the intent willfully
and purposely to inflict the injury complained of. Union Traction Co. v. Lowe, 31 Ind. App. 336, 67 N. E. 1021; Gregory v. Cleveland, etc., Ry. Co., 112 Ind. 385, 14 N. E. 228; Kalen v. Terre Haute, etc., Ry. Co., 18 Ind. App. 202, 47 N. E. 694, 63 Am. St. Rep. 343; Walker v. Wehking, 29 Ind. App. 62, 63 N. E. 128; Indianapolis, etc., Co. v. Taylor, 158 Ind. 274, 63 N. E. 456. In my judgment the facts pleaded bring the case at bar withIn this rule. In many respects we are living in an exceptional age, and it may be truthfully said that we are living in an age of rapid transit. It is a fact gleaned from the current events of the day that railway companies are continually increasing the speed of their trains to meet the demands of their patrons and the rapid growth of business. We also know as a matter of common knowledge that railways traversing the country cross highways in frequent use by persons traveling upon them. If it can be said as a matter of law (and it is a question of law arising upon the demurrer to the complaint) that the facts pleaded here constitute willfulness, for which appellant is answerable in damages, then railroad companies will be greatly restricted in the operation of their trains, the rights of the traveling public will be infringed, and rapid transit retarded. Not only that, but such a rule carried to its logical conclusion would render the servants and employés of trains, under such conditions, amenable to the criminal law. Again, if such a rule is declared by the courts, it will practically eliminate from the law the doctrine of contributory negligence, which is as old as the common law itself. In such case all that would be necessary in actions of this character would be to allege facts substantially like those here, prove that the railroad crossed a public highway that was used by a large number of persons, that the train was being run at a high rate of speed, and that injury resulted.
I am not prepared to give my approval to such a rule, which must be affirmed to support the judgment in this case. As in my judgment the complaint does not state facts sufficient to constitute a cause of action upon the theory of willfulness, the demurrer to it should have been sustained.
The facts, also, which are fully stated in the prevailing opinion, do not support the judgment.
ROBY, J. (dissenting). This is an action This is an action for damages on account of personal injuries averred to have been willfully inflicted upon appellee by the appellant. The cause was tried upon the second paragraph of complaint; a demurrer to the first paragraph having been sustained. The issue was formed by a general denial. Trial by jury, verdict for $900, motion for new trial overruled, and judgment on verdict from which this appeal is taken.
The action of the court in overruling a
demurrer for the want of facts to the second paragraph of complaint is assigned as error. The pleading is unnecessarily prolix, but it is therein directly averred that the appellant "willfully, purposely, and recklessly" inflicted the injuries complained of. This allegation is essential to a complaint counting upon willfulness and tenders the issue. The complaint was sufficient and the demurrer was correctly overruled. Gregory, Adm'r, v. C., C., C. & I. R. Co., 112 Ind. 385, 387, 14 N. E. 228; Union Traction Co. v. Lowe, 31 Ind. App. 336, 67 N. E. 1021; Brooks et al., Adm'rs, v. Pittsburg, etc., R. Co., 158 Ind. 62, 69, 62 N. E. 694. Whiteland is an incorporated town and a station on the defendant's railroad. The train by which appellee was struck was not scheduled to stop at Whiteland, and the same speed was maintained through the town as through the country. The rate at which this particular train was running was a little faster than usual, estimated at 60 miles an hour. The town is divided by the railroad track, being partly on the east and partly on the west side thereof. There were two streets crossing the track in said town, one at the main street and one north at the depot. Plaintiff was injured at the depot crossing. There was a canning factory one-fourth of a mile north of the depot. The wagon road crossed the railroad at about right angles, after which it described a curve and ran due north past the canning factory, diverging from the railroad, the direction of which was northwest and southeast. The defendant's station, 16 by 40 feet in size, was north of the highway and 20 feet east of the center of the railroad track. A water-closet and coal shed stood at its northeast corner. Twenty feet further northeast, along said wagon road, was a blacksmith shop. There was an orchard between the highway and railroad north of the depot, and there were shade trees at various points along the highway. The foliage upon the trees at the date of the injury complained of (June 10th), together with the buildings described, greatly obstructed the view of persons approaching from the east, rendering it difficult for them to see trains coming from the north. That portion of the track north of the canning factory was hidden by the factory buildings. There were points within 200 feet of the railroad from which a traveler could see such train if the relative positions occupied by the train and traveler at the moment of observation happened to be favorable, and there were many places from which it could not be observed. Appellant's plat shows the situation as follows: The evidence does not show the population of the town or the number of its business places. It had several stores, a post office, a school, a blacksmith shop, and a considerable number of dwellings. The crossing in question was constantly used by persons traveling along the highway. No very accurate statement of the number of persons so using it is made. The witnesses say that
it was used by many peopie, the employés | Marshall, Crimes (2d Ed.) § 60, p. 86. "Willin the factory, school children, and others. One witness estimates the number of teams crossing a day at 100 to 150. It is inferable that the defendant ran a number of trains over its track daily, but the number is not shown. No safeguards to prevent collision were provided at the crossing. There was no watchman or gate, and the railroad track was only about two feet higher than the street. The evidence justifies the finding that the engineer who ran the engine, and the defendant itself, by whom a schedule was made which the engineer was required to fill, knew the conditions existing at the crossing.
The preponderance of the evidence is to the effect that the whistle on the engine drawing said train was sounded near the canning factory, and that the engine bell was ringing as the train passed through the town. No pretense is made that any whistle was sounded except at the place named. Neither the engineer nor fireman actually saw appellee until the collision. There is much evidence as to the conduct of appellee in approaching the track, and under some of the late decisions there might have been ground in an action for negligence to submit the question of his contributory negligence to the jury, but such facts and the quality of his conduct are not material here. Contributory negligence is not a defense to an action for willful injury. Indianapolis, etc., v. Petty, 30 Ind. 261; Lake Erie v. Brafford, 15 Ind. App. 655, 660, 44 N. E. 551; Brannen v. Kokomo, etc., 115 Ind. 115, 17 N. E. 202, 7 Am. St. Rep. 411; Fisher v. Louisville, etc., 146 Ind. 558, 562, 45 N. E. 689; Miller v. Miller, 17 Ind. App. 605, 609, 47 N. E. 338; Aiken v. Holyoke, 184 Mass. 269, 68 N. E. 238; Louisville & Nashville v. Markee, 103 Ala. 160, 170, 15 South. 511, 49 Am. St. Rep. 21; Thompson's Neg. 206; Cooley on Torts, 674. Appellee, standing up in a lumber wagon, driving from the canning factory, entirely oblivious of the defendant's train, drove along the highway and upon the track, at which place his wagon was struck by said train with great force. The general verdict carries with it, under the issues, a finding that the collision with plaintiff's vehicle was willful. Whether such finding is supported by any evidence is the question upon which the disposition of the appeal depends, and is presented by an assignment that the court erred in overruling the motion for a new trial. A correct answer depends upon a clear understanding of the issue. The common meaning of the word "willful" is "voluntarily or intentionally." Chicago, etc., R. Co. v. Nash, 1 Ind. App. 298, 302, 27 N. E. 564; Dull v. Cleveland, etc., R. Co., 21 Ind. App. 571, 52 N. E. 1013; Miller v. Miller, 17 Ind. App. 605, 47 N. E. 338; City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 246, 255, 39 N. E. 943: Illinois Central R. Co. v. Leiner, 202 Ill. 624, 631, 67 N. E. 398, 95 Am. St. Rep. 266; Bouvier's Dictionary, title "Willfulness"; Clark &
fulness" and "negligence" are incompatible terms. "Negligence" arises arises from inattention, thoughtlessness, and heedlessness, while "willfulness" cannot exist without purpose or design. Brooks et al., Adm'rs, v. Pittsburg, etc., R. Co., 158 Ind. 62, 70, 62 N. E. 694; Par ker, Adm'r, v. Penn. Co., 134 Ind. 673, 679, 34 N. E. 504, 23 L. R. A. 552; Miller v. Miller, supra; Penn. Co. v. Myers, Adm'x, 136 Ind. 242, 258, 36 N. E. 32; Indiana, etc., v. O'Brien, etc., 160 Ind. 266, 272, 65 N. E. 918, 66 N. E. 742; Cleveland, etc., R. Co. v. Tartt, Adm'r, 99 Fed. 369, 39 C. C. A. 568, 49 L. R. A. 98; Terre Haute, etc., Co. v. Graham, 95 Ind. 286, 293, 48 Am. Rep. 719; McCollum v. Cleveland, etc., R. Co., 154 Ind. 97, 100, 55 N. E. 1024.
That willfulness involves conduct which is "quasi criminal" is declared in the following decisions: Louisville, etc., R. Co. v. Bryan, 107 Ind. 51, 53, 7 N. E. 807; Miller v. Miller, supra; Cleveland, etc., R. Co. v. Miller, Adm'r, 149 Ind. 490, 500, 49 N. E. 445; Parker v. Penn. Co., supra; Belt R. Co., etc., v. Mann, 107 Ind. 89, 93, 7 N. E. 893; Brooks et al. v. Pittsburg, etc., R. Co., supra; Walker v. Wehking, 29 Ind. App. 62, 66, 63 N. E. 128; Dull v. Cleveland, etc., R. Co., supra; Union Traction Co. of Ind. v. Lowe, 31 Ind. App. 336, 67 N. E. 1021; Indianapolis Street R. Co. v. Taylor, 158 Ind. 274, 277, 63 N. E. 456; Indianapolis Street Ry. Co. v. Darnell, 32 Ind. App. 687, 68 N. E. 609. A quasi crime is an offense not constituting a crime or misdemeanor at law, but which is in the nature of a crime. "A class of offenses which have not been declared crimes, but are wrongs against the general or local public, which it is proper should be repressed or punished by forfeitures or penalties." Bouvier's Dict., title "Quasi Crimes." A willful injury being only quasi criminal, it follows that it is not necessary to sustain a charge of willfulness that the evidence make out a case of first-degree murder. Chicago, etc., R. Co. v. Nash, 1 Ind. App. 298, 303, 27 N. E. 564. It is not even necessary that the defendant, who is averred to have committed willful injury to another, be proven guilty of second-degree murder or manslaughter. Liability is fixed by proof of an act which is a wrong against the general or local public, although not within the terms of any statute, by which damage is caused. It also follows that, if death is caused under such circumstances as to amount to first or second degree murder or manslaughter, there can never be any doubt of civil liability. The greater includes the less; and this is true, also, as to the extent of the injury inflicted. In the case at bar death did not follow the alleged willful injury. Had it done so, and if the appellant would then have been guilty of murder or manslaughter, it would be equally liable for the injury actually suffered. Banks v. Braman (Mass.) 74 N. E. 594. It follows that the quality of the facts proven, as to their
nature, either as criminal or quasi criminal, may be best determined by a consideration of the authorities which would measure liability, had death resulted, as it wonderfully did not do. The statute of Indiana defines manslaughter in the exact terms used by Blackstone in his definition of the commonlaw crime. State v. Dorsey, 118 Ind. 167, 20 N. E. 777, 10 Am. St. Rep. 111.
It will not be necessary for the purposes of this case to inquire into the elements of any degree of homicide above that of manslaughter. Under our statute a railroad engineer who carelessly runs his locomotive against a passenger car standing upon the railroad, thereby causing the death of a person in the car, is guilty of manslaughter. State v. Dorsey, supra; Potter v. State, 162 Ind. 213, 70 N. E. 129, 64 L. R. A. 942, 102; Anderson v. State, 27 Tex. App. 177, 11 S. W. 33, 3 L. R. A. 644, 11 Am. St. Rep. 189. This is no more than an application of the doctrine that "a man may commit murder or manslaughter by doing otherwise lawful acts recklessly." Commonwealth v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; Commonwealth v. Hartwell, 128 Mass. 415, 35 Am. Rep. 391, 5 Am. Criminal R. 391. No form of statement can so clearly demonstrate the scope and effect of the doctrine as a brief resume of the facts somewhat analogous to those involved in the case at bar, which have been judged by the highest courts to come within the principle. "If one should drive so rapidly along a great thoroughfare leading to a large town as to be unable to avoid running over any pedestrian who may happen to be in the middle of the road, it is that degree of negligence in the conduct of a horse and gig which amounts to an illegal act in the eye of the law, and if death ensues from the injuries then inflicted the parties driving are guilty of manslaughter, even though considerable blame may be attributed to the deceased." Regina v. Longbottom, 4 Cox, C. C. 449, 1 Leading Criminal Cases, 66. "Prisoner indicted for manslaughter. The evidence was that, being employed to drive a cart, he sat inside, instead of attending to the horse's head, and while he was thus sitting the cart went over a child who was gathering up flowers in the road. The person by being in the cart, instead of at the horse's head or by its side, was guilty of negligence, and, death having been caused by such negligence, he is guilty of man- slaughter." Knight's Case, Lewin, C. C. 168, per Bagley, J. "Being late for the train, Jackson was driving at full gallop and ran over a child going to school and killed it." If the jury are of the opinion that the persons were driving at a dangerous pace in a culpably negligent manner, then they, the defendants, are guilty. Regina v. Kew & Jackson, 12 Cox, C. C. 355. "Lord Coleridge, C. J. The conviction must be affirmed. If a person will, without taking proper precautions, do an act which is itself dangerous, even though not an unlawful act in itself, and in the
course of it he kills another person, he does a criminal act which in law constitutes manslaughter." Queen v. Salmon, 6 O. B. D. 79, s. c., 29 Monk, 503. A switchman carelessly failed to set a switch and thereby caused a loss of life. The Supreme Court of New Jersey, in affirming a conviction for manslaughter, said: "He owed a personal duty, not only to his employers, but to the public. He was found to have been grossly negligent in the performance of that duty, whereby human life was sacrificed. His conviction was right." State v. O'Brien, 32 N. J. Law, 169.. "If the defendant was unlawfully, wantonly, and recklessly driving upon the public highway and thereby ran down and killed one who had a right to be there, the fact that the defendant, when it was too late, tried to avoid the accident, would not excuse him." State v. Stentz, 33 Wash. 444, 450, 74 Pac. 588. The defendant, driving a team through the principal street of a town in a reckless manner, struck and fatally injured a woman who was attempting to cross the street. People v. Pearne, 118 Cal. 154, 50 Pac. 376. The driver of a cart at an unusually rapid pace drove over another, who could not escape because of the rapidity of the driving. Held manslaughter, although the defendant called to the deceased to get out of the way, and he might have done so had he not been drunk. Rex v. Walker, 1 Car. & P. 320. A nearsighted man sat on the bottom of a cart and drove at lamp light along the public highway at 8 or 10 miles an hour, and ran over and killed a footman; held guilty of such carelessness as made the killing manslaughter. Rex v. Grant, 6 Car. & P. 629. Neglecting to cover the mouth of a mine shaft because of which brick fell upon and killed a person below. Rex v. Hughes, 7 Cox, C. C. 301. ligence in the use of building material. People v. Buddensieck, 103 N. Y. 487, 9 N. E. 44, 57 Am. Rep. 766. The cases according with State v. Dorsey, supra, are numerous. Lee v. State, 1 Cold. (Tenn.) 62 (driving a hack against a child); White v. State, 84 Ala. 421, 4 South. 598 (suddenly stopping a hand car); Smith v. Justus, 11 Or. 178, 8 Pac. 337, 50 Am. Rep. 470 (shooting and killing another); State v. Gilman, 69 Me. 163, 31 Am. Rep. 257 (shooting toward a crowd); State v. Vance, 17 Iowa, 138 (shooting and killing another). The general rule deduced from the cases is that the negligent performance of a duty, or the negligent omission to perform a duty, is regarded as an unlawful act, which if it results in death is homicide in the commission of an unlawful act, for which the perpetrator is criminally liable. Monographic note, 61 L. R. A. 277, 299, subd. 10; Clark & Marshall, Crimes, §§ 60, 264; Kerr, Homicide, § 157; 4 Blackstone, Com. 191; 2 Bishop, New Criminal Law, 659; 1 Wharton, Criminal Law (9th Ed.) 329, 336; 2 Wharton, Criminal Law (9th Ed.) 1563, 1567; 13 Wend. 159; 4 Mason, 505. These rules apply with full force to homicides resulting from the negli
gent management of locomotive engines, automobiles, bicycles, and other like dangerous agencies. The test of criminal liability lies in the negligent operation of the engine in view of all the conditions. State v. Dorsey, supra; People v. Thompson, 122 Mich. 411, 81 N. W. 344; Johnson v. State (Ohio) 63 N. E. 607, 90 Am. St. Rep. 564, 61 L. R. A. 277, 281, note b. The defendant or its representative would therefore be guilty of manslaughter if the train which struck appellee's wagon was run, in view of the circumstances and facts shown, in a reckless manner and death had resulted.
The Supreme Court of Massachusetts have in some late and well-considered cases discussed the question of civil liability for willful injury, and we quote from one of them as follows: "The law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger it holds him to have intended the natural consequences of his act, and treats him as guilty of a willful and intentional wrong. It is no defense to a charge of manslaughter for the defendant to show that, while grossly reckless, he did not actually intend to cause the death of his victims. In these cases of personal injury there is a constructive intention as to the consequences which entering into the willful intentional act the law imports to the offender, and in this way a charge which otherwise would be mere negligence becomes, by reason of a reckless disregard of probable consequences, a willful wrong. That this constructive intention to do an injury, in such cases, will be imported in the absence of an actual intent to harm a particular person, is recognized in civil actions for recklessly and wantonly injuring others by carelessness." Aiken v. Holyoke, S. & R., 184 Mass. 269, 68 N. E. 238. It is patent that if a railroad engineer should discover a person upon the track and evidently unable to escape therefrom that to run him down with knowledge of such conditions and power not to do so would not only furnish a basis for civil liability, but for criminal liability of a higher grade than manslaughter, but no one can for a moment maintain that such a situation is the only one from which civil liability for willfulnes arises. It is not claimed in the case at bar that the appellant or its agents, in charge of the engine, saw appellee until the collision occurred, and no suggestion of an actual intent to kill or injure him is made, so that the verdict cannot rest upon an actual intent, as, of course, it might do if murder had been done. Forty years ago the Supreme Court of Indiana, speaking by a judge who has had no superiors in strength of intellect and grace of diction, said: "It is well settled that, where the negligence of the defendant is so gross as to imply a disregard of consequences or a willingness to inflict the injury, the plaintiff may recover, though he be a trespasser or did not use ordinary care
to avoid the injury. Recklessness in the management of the train is such gross negligence as is utterly regardless of consequences." Lafayette, etc., v. Adams, 26 Ind. 76, 78. A late expression adopted in the following cited cases is: "The injurious act or omission must have been purposely and intentionally committed, with a design to produce injury, or it must have been so committed under such circumstances as that its natural and probable consequence would be to produce injuries to others. There must have been either an active or a constructive intent to commit the injury." The Belt R. R. Co. v. Mann, 107 Ind. 89, 93, 7 N. E. 893; Louisville, etc., R. Co. v. Bryan, 107 Ind. 51, 7 N. E. 807; Pa. Co. v. Sinclair, Adm'r, 62 Ind. 301, 306, 30 Am. Rep. 185; Palmer v. Chicago, etc., R. Co., 112 Ind. 250, 14 N. E. 70; Louisville, etc., R. Co. v. Ader, 110 Ind. 376, 380, 11 N. E. 437; Parker v. Pa. Co., supra; Conner v. Citizens' St. R. Co. of Indianapolis, 146 Ind. 430, 435, 45 N. E. 662; Cleveland, etc., R. Co. v. Miller, Adm'r, 149 Ind. 490, 500, 49 N. E. 445; Cincinnati, etc., R. Co. v. Cooper, Adm'r, 120 Ind. 469, 474, 22 N. E. 340, 6 L. R. A. 241, 16 Am. St. Rep. 334; Brannen v. Kokomo, etc., supra; Gregory, Adm'r, v. Cleveland, etc., R. Co., 112 Ind. 385, 387, 14 N. E. 228; Indianapolis v. Taylor, supra; Brooks v. Pittsburg Co., supra; Union Traction, etc., Co. v. Lane, supra; Overton v. Ind., etc., R. Co., 1 Ind. App. 436, 27 N. E. 651; Barr, Adm'r, v. Chicago, etc., R. Co., 10 Ind. App. 433, 436, 37 N. E. 814; Dull v. Cleveland, etc., R. Co., supra; Pittsburgh, etc., R. Co. v. Judd, 10 Ind. App. 213, 222, 36 N. E. 775; Louisville, etc., R. Co. v. Cronbach, Adm'r, 12 Ind. App. 66ʊ, 673, 41 N. E. 15; Miller v. Miller, supra; Hancock v. Lake Erie, etc., Co., 21 Ind. App. 10, 19, 51 N. E. 369; Indianapolis, etc., R. Co. v. Petty, supra; Carter v. Louisville, etc., R. Co., 98 Ind. 552, 556, 49 Am. Rep. 780; Cincinnati, etc., Co. v. Cooper, 120 Ind. 469, 474, 22 N. E. 340, 6 L. R. A. 241, 16 Am. St. Rep. 334.
The question as to what is recklessness and what is due care, in a prosecution for involuntary manslaughter, by killing another in doing an unlawful act, in an unlawful manner, is a question of fact for the jury. Queen v. Cavendish, Ir. Rep. 8 C. 1, 178; People v. Thompson, 122 Mich. 411, 81 N. W. 344; United States v. Taylor, 5 McLean, 242, Fed. Cas. No. 16.441; Rex v. Williamson, 3 Car. & P. 635; Regina v. Marlsuss, 4 Fost. & F. 356; Regina v. Long, 4 Car. & P. 398; Rex v. Spiller, 5 Car. & P. 333; Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. 264; State v. Hardister, 38 Ark. 605, 42 Am. Rep. 5; Rex v. Timmins, 7 Car. & P. 499, 32 E. C. L.--. The collision complained of occurred at a public crossing, a place at which the obligations were mutual. "For, conceding that the railway train has the right of precedence of crossing, the parties are still on equal terms as to the exercise of