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on said locomotive was not sounded, and crossing of the “Michigan Road, and that the bell was not rung to give warning of the said Michigan Road was at the time the approach of said locomotive; * * * that

main highway between the city of South said crossing was made extrahazardous Bend and the town of New Carlisle, and a by the track being hidden from view for great many persons were constantly travelsome distance by intervening buildings, all ing said highway and crossing said tracks," of which was well known to said defendant etc. The court in that case said: “But no and its servants,” etc. It was held that attempt is made to set up in the paragraph the complaint did not charge willful injury, under consideration an exceptional crossing, and, in deciding the question, Mitchell, J., 'except as to the number of persons using said: "To constitute a willful injury, the it.

The number of persons daily act which produces it must have been inten- passing or repassing over the crossing tional, or must have been done under such * * cannot affect the rights and duties circumstances as evidenced a reckless dis- of appellant at the crossing, in the absence regard for the safety of others, and a will- of any showing that the number was known ingness to inflict the injury complained of." to be so great as to impede progress, or

In the case from which I have quoted it in some other way make the crossing more was held the facts charged failed to bring difficult and dangerous to travelers. Persons the case within either of the conditions ex- having eyes and ears must use them at grade pressed, or to indicate an actual or construct- crossings, each for himself, whether alone ive intent on the part of appellant; that is, or in a great company, and, when by the the language used in the complaint did not exercise of due care each may escape inshow that the act complained of was inten- jury, it makes no difference in the company's tional, or that under the circumstances de- right to speed its train over a crossing tailed evinced a reckless disregard for the whether there is one or many in the act, or safety of others, and a willingness to inflict about to pass over the same.” I recognize the injury. "Willfulness," as used in the the fact that in that case the court was dealcomplaint, cannot exist without purpose or ing with a question of negligence, and not a design. Parker, Adm'r, v. Pennsylvania Co., question of willfulness. I also recognize that, 134 Ind. 673, 34 N. E. 504, 23 L. R. A. 552; in an action to recover damages resulting from Belt, etc., Ry. Co. v. Mann, 107 Ind. 89, 7 a willful act, the question of negligence on N. E. 893. A person may be held liable for the part of the defendant and contributing the consequences of a willful act without negligence on the part of the plaintiff are actual knowledge of the presence of the ob- eliminated. The fact that "large numbers ject acted upon, but his liability never exists of vehicles and foot passengers" passed over where the act or omission is one from which the crossing, and the fact that with a knowlthe injury could not reasonably have been edge of that fact appellant ran its train anticipated as the natural and probable con- at a speed of 60 miles an hour, do not, in sequence of such act or omission. Parker, my judginent, constitute willfulness, within Adm'r, v. Pennsylvania Co., supra. This the meaning of that term. The expression statement of the law is the key to the solu- "large numbers of vehicles and foot passention of the question of willfulness as pre- gers" is but a relative term. It is too insented by the complaint.

definite to have any fixed meaning in a The case I am considering presents no pleading. Lake Shore, etc., Ry. Co. v. Barnes, stronger case of willfulness than the Bryan supra. The language used in this complaint and ,

Mann Cases, supra. Here appellee descriptive of the surroundings and condistates three facts which he insists constitute tions and the acts of the appellant is so willfulness: (1) High and excessive rate of similar to that used in the Barnes Case, speed; (2) a public highway, crossing appel- supra, that there is no distinction to be lant's track, which was frequently used by drawn, except here the language used and the public; and (3) that appellant knew that facts stated are made the basis of a willit was so used. It may be observed that it ful act, while in that case they are made is charged that Whiteland, through which the basis of a negligent act. The employés appellant's train was being run, was an in- in charge of appellant's train had a right to corporated town, yet it is not charged that presume that a traveler on the public highit was run in violation of any ordinance way approaching and intending to cross its limiting the speed of trains within its corpo- track would both look and listen for an anrate limits. This being true, appellant had proaching train. There is no charge in the the right to run its train over the crossing complaint that the train was late or running at any rate of speed it chose, that was not out of its schedule time, or at a greater rate inconsistent with the safety of the “persons of speed than that which it was scheduled to or things" in its charge. Lake Shore, etc., run. Ry. Co. v. Barnes (Ind. Sup.) 76 N. E. 629, There is a line of cases holding that in a and authorities there cited.

complaint which seeks redress for a willful In the case last cited the action was injury, involving, as it does, conduct which based upon negligence, and the negligence is quasi criminal, it must be averred that charged was in running a train of cars at the injurious act was purposely and intena high and dangerous rate of speed over a tionally committed with the intent willfully

78 N.E.-63

and purposely to inflict the injury complain- demurrer for the want of facts to the seced of. Union Traction Co. v. Lowe, 31 Ind. ond paragraph of complaint is assigned as App. 336, 67 N E. 1021; Gregory v. Cleve- error. The pleading is unnecessarily prolix, land, etc., Ry. Co., 112 Ind. 385, 14 N. E. but it is therein directly averred that the 228; Kalen v. Terre Haute, etc., Ry. Co., 18 appellant "willfully, purposely, and recklessInd. App. 202, 47 N. E. 694, 63 Am. St. Rep. ly” inflicted the injuries complained of. This 343; Walker v. Webking, 29 Ind. App. 62, 63 allegation is essential to a complaint countN. E. 128; Indianapolis, etc., Co. v. Taylor, ing upon willfulness and tenders the issue. 158 Ind. 274, 63 N. E. 456. In my judgment

In my judgment | The complaint was sufficient and the demurthe facts pleaded bring the case at bar with- rer was correctly overruled. Gregory, Adm'r, in this rule. In many respects we are living v. C., C., C. & I. R. Co., 112 Ind. 385, 387, 14 in an exceptional age, and it may be truth- N. E. 228; Union Traction Co. v. Lowe, 31 Ind. fully said that we are living in an age of App. 336, 67 N. E. 1021; Brooks et al., Adm’rs, rapid transit. It is a fact gleaned from the v. Pittsburg, etc., R. Co., 158 Ind. 62, 69, 62 N. current events of the day that railway com- E. 694. Whiteland is an incorporated town panies are continually increasing the speed and a station on the defendant's railroad. of their trains to meet the demands of their The train by which appellee was struck was patrons and the rapid growth of business. not scheduled to stop at Whiteland, and the We also know as a matter of common knowl- same speed was maintained through the town edge that railways traversing the country as through the country. The rate at which cross highways in frequent use by persons

this particular train was running was a little traveling upon then. If it can be said as faster than usual, estimated at 60 miles an hour. a matter of law and it is a question of law The town is divided by the railroad track, bearising upon the demurrer to the complaint) ing partly on the east and partly on the west that the facts pleaded here constitute will- side thereof. There were two streets crossfulness, for which appellant is answerable ing the track in said town, one at the main in damages, then railroad companies will be

street and one north at the depot. Plaintiff greatly restricted in the operation of their was injured at the depot crossing. There trains, the rights of the traveling public will

was a canning factory one-fourth of a mile be infringed, and rapid transit retarded. north of the depot. The wagon road crossed Not only that, but such a rule carried to its the railroad at about right angles, after which logical conclusion would render the servants

it described a curve and ran due north past and employés of trains, under such condi- the canning factory, diverging from the railtions, amenable to the criminal law. Again,

road, the direction of which was northwest if such a rule is declared by the courts, it

and southeast. The defendant's station, 16 will practically eliminate from the law the by 40 feet in size, was north of the highway doctrine of contributory negligence, which is

and 20 feet east of the center of the railroad as old as the common law itself. In such

track. A water-closet and coal shed stood case all that would be necessary in actions

at its northeast corner. Twenty feet further of this character would be to allege facts

northeast, along said wagon road, was a substantially like those here, prove that the

blacksmith shop. There was an orchard berailroad crossed a public highway that was

tween the highway and railroad north of used by a large number of persons, that the

the depot, and there were shade trees at train was being run at a high rate of speed,

various points along the highway. The foliand that injury resulted.

age upon the trees at the date of the injury I am not prepared to give my approval to

complained of (June 10th), together with the such a rule, which must be affirmed to sup

buildings described, greatly obstructed the port the judgment in this case.

As in my

view of persons approaching from the east, judgment the complaint does not state facts

rendering it difficult for them to see trains sufficient to constitute a cause of action upon

coming from the north. That portion of the theory of willfulness, the demurrer to it

the track north of the canning factory was should have been sustained.

hidden by the factory buildings. There were The facts, also, which are fully stated in

points within 200 feet of the railroad from the prevailing opinion, do not support the

which a traveler could see such train if the judgment.

relative positions occupied by the train and

traveler at the moment of observation hapROBY, J. (dissenting). This is an action pened to be favorable, and there were many for damages on account of personal injuries places from which it could not be observed. averred to have been willfully inflicted upon Appellant's plat shows the situation as fol. appellee by the appellant. The cause was lows: The evidence does not show the poputried upon the second paragraph of com- lation of the town or the number of its busiplaint; a demurrer to the first paragraph ness places. It had several stores, a post ofhaving been sustained. The issue was form- fice, a school, a blacksmith shop, and a coned by a general denial. Trial by jury, ver- siderable number of dwellings. The crossing dict for $900, motion for new trial overruled, in question was constantly used by persons and judgment on verdict from which this traveling along the highway. No very accuappeal is taken.

rate statement of the number of persons so The action of the court in overruling a using it is made. The witnesses say that

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it was used by many peopie, the employés | Marshall, Crimes (2d Ed.) $ 60, p. 86. "Will. in the factory, school children, and others. fulness" and "negligence" are incompatible One witness estimates the number of teams terms. "Negligence" arises

arises from inattencrossing a day at 100 to 150. It is inferable tion, thoughtlessness, and heedlessness, while that the defendant ran a number of trains "willfulness” cannot exist without purpose or over its track daily, but the number is not design.

design. Brooks et al., Adm'rs, v. Pittsburg, shown. No safeguards to prevent collision etc., R. Co., 158 Ind. 62, 70, 62 N. E. 694; Par. were provided at the crossing. There was no ker, Adm'r, v. Penn. Co., 134 Ind. 673, 679, watchman or gate, and the railroad track 34 N. E. 504, 23 L R. A. 552; Miller v. Miller, was only about two feet higher than the supra; Penn. Co. v. Myers, Adm'x, 136 Ind. street. The evidence justifies the finding that 242, 258, 36 N. E. 32; Indiana, etc., v. O'Brien, the engineer who ran the engine, and the de- etc., 160 Ind. 266, 272, 65 N. E. 918, 66 N. E. fendant itself, by whom a schedule was made 742; Cleveland, etc., R. Co. v. Tartt, Adm'r, which the engineer was required to fill, knew 99 Fed. 369, 39 C. O. A. 568, 49 L. R. A. 98; the conditions existing at the crossing.

Terre Haute, etc., Co. v. Graham, 95 Ind. 286, The preponderance of the evidence is to

293, 48 Am. Rep. 719; McCollum v. Cleveland, the effect that the whistle on the engine draw- etc., R. Co., 154 Ind. 97, 100, 55 N. E. 1024. ing said train was sounded near the canning That willfulness involves conduct which is factory, and that the engine bell was ringing "quasi criminal” is declared in the followas the train passed through the town. No

ing decisions: Louisville, etc., R. Co. v. pretense is made that any whistle was sound- Bryan, 107 Ind. 51, 53, 7 N. E. 807; Miller ed except at the place named. Neither the

V. Miller, supra; Cleveland, etc., R. Co. v. engineer nor fireman actually saw appellee un- Miller, Adm'r, 149 Ind. 490, 500, 49 N. E. til the collision. There is much evidence as

445; Parker V. Penn. Co., supra; Belt R. to the conduct of appellee in approaching the Co., etc., v. Mann, 107 Ind. 89, 93, 7 N. E. track, and under some of the late decisions 893; Brooks et al. v. Pittsburg, etc., R. Co., there might have been ground in an action

supra; Walker v. Webking, 29 Ind. App. 62, for negligence to submit the question of his 66, 63 N. E. 128; Dull v. Cleveland, etc., R. contributory negligence to the jury, but such Co., supra; Union Traction Co. of Ind. v. facts and the quality of his conduct are not Lowe, 31 Ind. App. 336, 67 N. E. 1021; Inmaterial here. Contributory negligence is

dianapolis Street R. Co. v. Taylor, 158 Ind. not a defense to an action for willful injury.

274, 277, 63 N. E. 456; Indianapolis Street Indianapolis, etc., v. Petty, 30 Ind. 261; Lake

Ry, Co. v. Darnell, 32 Ind. App. 687, 68 N. Erie v. Brafford, 15 Ind. App. 655, 660, 44 E. 609. A quasi crime is an offense not N. E. 551; Brannen v. Kokomo, etc., 115 Ind. constituting a crime or misdemeanor at law, 115, 17 N. E. 202, 7 Am. St. Rep. 411; Fish- but which is in the nature of a crime. “A er v. Louisville, etc., 146 Ind. 558, 562, 45 class of offenses which have not been deN. E. 689; Miller v. Miller, 17 Ind. App. 605,

clared crimes, but are wrongs against the 609, 47 N. E. 338; Aiken v. Holyoke, 184

general or local public, which it is proper Mass. 269, 68 N. E. 238; Louisville & Nash

should be repressed or punished by forfeiville v. Markee, 103 Ala. 160, 170, 15 South.

tures or penalties." Bouvier's Dict., title 511, 49 Am. St. Rep. 21; Thompson's Neg. “Quasi Crimes.” A willful injury being only 206; Cooley on Torts, 674. Appellee, stand

quasi criminal, it follows that it is not necesing up in a lumber wagon, driving from the

sary to sustain a charge of willfulness that canning factory, entirely oblivious of the de

the evidence make out a case of first-degree fendant's train, drove along the highway and

murder. Chicago, etc., R. Co. v. Nash, 1 Ind. upon the track, at which place his wagon was App. 298, 303, 27 N. E. 564. It is not even struck by said train with great force. The

necessary that the defendant, who is a verred general verdict carries with it, under the is- to have committed willful injury to another, sues, a finding that the collision with plain

be proven guilty of second-degree murder or tiff's vehicle was willful. Whether such find.

manslaughter. Liability is fixed by proof of ing is supported by any evidence is the an act which is a wrong against the general question upon which the disposition of the

or local public, although not within the appeal depends, and is presented by an as- terms of any statute, by which damage is signment that the court erred in overruling

caused. It also follows that, if death is the motion for a new trial. A correct answer

under such

such circumstances as to depends upon a clear understanding of the

amount to first or second degree murder or issue. The common meaning of the word manslaughter, there can never be any doubt "willful" is "voluntarily or intentionally."

of civil liability. The greater includes the Chicago, etc., R. Co. v. Nash, 1 Ind. App. 298,

less; and this is true, also, as to the extent 302, 27 N. E. 564; Dull v. Cleveland, etc., R. of the injury inflicted. In the case at bar Co., 21 Ind. App. 571, 52 N. E. 1013; Miller v. death did not follow the alleged willful inMiller, 17 Ind. App. 605, 47 N. E. 338; City jury. Had it done so, and if the appellant of Indianapolis v. Consumers' Gas Trust Co., would then have been guilty of murder or 140 Ind. 246, 255, 39 N. E. 943 : Illinois manslaughter, it would be equally liable for Central R. Co. v. Leiner, 202 Ill. 624, 631, 67 the injury actually suffered. Banks v. BraN. E. 398, 95 Am. St. Rep. 266; Bouvier's man (Mass.) 74 N. E. 594. It follows that Dictionary, title "Willfulness”; Clark & the quality of the facts proven, as to their

case at bar, which have been judged by the dr

nature, either as criminal or quasi criminal, course of it he kills another person, he does may be best determined by a consideration a criminal act which in law constitutes manof the authorities which would measure lia slaughter.” Queen v. Salmon, 6 0. B. D. 79, bility, had death resulted, as it wonderfully S. C., 29 Monk, 503. A switchman carelessly did not do. The statute of Indiana defines failed to set a switch and thereby caused a manslaughter in the exact terms used by loss of life. The Supreme Court of New JerBlackstone in his definition of the common sey, in affirming a conviction for manslaughlaw crime. State v. Dorsey, 118 Ind. 167, ter, said: "He owed a personal duty, not only 20 N. E. 777, 10 Am. St. Rep. 111.

to his employers, but to the public. He was It will not be necessary for the purposes found to have been grossly negligent in the of this case to inquire into the elements of performance of that duty, whereby human any degree of homicide above that of man life was sacrificed. Ilis conviction was slaughter. Under our statute a railroad en right." State v. O'Brien, 32 N. J. Law, 169.. gineer who carelessly runs his locomotive “If the defendant was unlawfully, wantonly, against a passenger car standing upon the and recklessly driving upon the public highrailroad, thereby causing the death of a per way and thereby ran down and killed one son in the car, is guilty of manslaughter. who had a right to be there, the fact that the State v. Dorsey, supra; Potter v. State, 162 Ind. defendant, when it was too late, tried to 213, 70 N. E. 129, 64 L. R. A. 912, 102; Ander avoid the accident, would not excuse him." son v. State, 27 Tex. App. 177, 11 S. W. 33, 3 State v. Stentz, 33 Wash. 444, 450, 74 Pac. L. R. A. 614, 11 Am. St. Rep. 189. This is no 588. The defendant, driving a team through more than an application of the doctrine that the principal street of a town in a reckless "a man may commit murder or manslaughter manner, struck and fatally injured a woman by doing otherwise lawful acts recklessly.” who was attempting to cross the street. Commonwealth v. Pierce, 138 Mass. 165, 52 People v. Pearne, 118 Cal. 154, 50 Pac. 376. Am. Rep. 264; Commonwealth v. Hartwell, 128 The driver of a cart at an unusually rapid Mass. 415, 35 Am. Rep. 391, 5 Am. Criminal pace drove over another, who could not esR. 391. No form of statement can so clear cape because of the rapidity of the driving. ly demonstrate the scope and effect of the Held manslaughter, although the defendant doctrine as a brief resume of the facts some called to the deceased to get out of the way, what analogous to those involved in the and he might have done so had he not been

drunk. Rex v. Walker, 1 Car. & P. 320. A highest courts to come within the principle. nearsighted man sat on the bottom of a cart "If one should drive so rapidly along a great and drove at lamp light along the public highthoroughfare leading to a large town as to be way at 8 or 10 miles an hour, and ran over unable to avoid running over any pedestrian and killed a footman; held guilty of such carewho may happen to be in the middle of the lessness as made the killing manslaughter. road, it is that degree of negligence in the Rex v. Grant, 6 Car. & P. 629. Neglecting to conduct of a horse and gig which amounts to cover the mouth of a mine shaft because of an illegal act in the eye of the law, and if which brick fell upon and killed a person bedeath ensues from the injuries then inflicted low. Rex v. Hughes, 7 Cox, C. C. 301. Negthe parties driving are guilty of manslaugh ligence in the use of building material. Peoter, even though considerable blame may be ple v. Buddensieck, 103 N. Y. 487, 9 N. E. 44, attributed to the deceased.” Regina v. Long 57 Am. Rep. 766. The cases according with bottom, 4 Cox, C. C. 449, 1 Leading Criminal State v. Dorsey, supra, are numerous. Lee Cases, 66. "Prisoner indicted for manslaugh v. State, 1 Cold, (Tenn.) 62 (driving a hack ter. The evidence was that, being employed against a child); White v. State, 84 Ala. 421, to drive a cart, he sat inside, instead of 4 South. 598 (suddenly stopping a hand car); attending to the horse's head, and while he Smith v. Justus, 11 Or. 178, 8 Pac. 337, 50 was thus sitting the cart went over a child Am. Rep. 470 (shooting and killing another); who was gathering up flowers in the road. State v. Gilman, 69 Me. 163, 31 Am. Rep. 257 The person by being in the cart, instead of (shooting toward a crowd); State v. Vance, at the horse's head or by its side, was guilty 17 Iowa, 138 (shooting and killing another). of negligence, and, death having been caused The general rule deduced from the cases is by such negligence, he is guilty of man that the negligent performance of a duty, or - slaughter.” Knights Case, Lewin, 6. C. 168, the negligent omission to perform a duty, is per Bagley, J. “Being late for the train, regarded as an unlawful act, which if it reJackson was driving at full gallop and ran sults in death is homicide in the commission over a child going to school and killed it." of an unlawful act, for which the perpetrator If the jury are of the opinion that the persons is criminally liable. Monographic note, 61 were driving at a dangerous pace in a cul L. R. A. 277, 299, subd. 10; Clark & Marpably negligent manner, then they, the de shall, Crimes, $$ 60, 264; Kerr, Homicide, $ fendants, are guilty. Regina v. Kew & Jack 157; 4 Blackstone, Com. 191; 2 Bishop, New son, 12 Cox, C. C. 355. "Lord Coleridge, C. Criminal Law, 659; 1 Wharton, Criminal J. The conviction must be affirmed. If a per Law (9th Ed.) 329, 336; 2 Wharton, Criminal son will, without taking proper precautions, do Law (9th Ed.) 1563, 1567; 13 Wend. 159; 4 an act which is itself dangerous, even though Mason, 505. These rules apply with full not an unlawful act in itself, and in the force to homicides resulting from the negli.

gent management of locomotive engines, au to avoid the injury.

the injury. Recklessness in the tomobiles, bicycles, and other like dangerous management of the train is such gross negagencies. The test of criminal liability lies ligence as is utterly regardless of consein the negligent operation of the engine in quences." Lafayette, etc., v. Adams, 26 Ind. view of all the conditions. State v. Dorsey, 70, 78. A late expression adopted in the supra; People v. Thompson, 122 Mich. 411, following cited cases is: "The injurious act 81 N. W. 344; Johnson v. State (Ohio) 63 N. or omission must have been purposely and E. 607, 90 Am. St. Rep. 564, 61 L. R. A. 277, intentionally committed, with a design to 281, note b. The defendant or its representa - produce injury, or it must have been so tive would therefore be guilty of manslaugh committed under such circumstances as that ter if the train which struck appellee's wagon its natural and probable consequence would was run, in view of the circumstances and be to produce injuries to others. There must facts shown, in a reckless manner and death have been either an active or a constructive had resulted.

intent to commit the injury." The Belt R. The Supreme Court of Massachusetts have R. Co. v. Mann, 107 Ind. 89, 93, 7 N. E. 893; in some late and well-considered cases dis Louisville, etc., R. Co. v. Bryan, 107 Ind. 51, cussed the question of civil liability for will 7 N. E. 807; Pa. Co. v. Sinclair, Adm'r, ful injury, and we quote from one of them 62 Ind. 301, 306, 30 Am. Rep. 185; Palmer as follows: "The law is regardful of human v. Chicago, etc., R. Co., 112 Ind. 250, 14 N. life and personal safety, and if one is gross E. 70; Louisville, etc., R. Co. v. Ader, 110 ly and wantonly reckless in exposing others Ind. 376, 380, 11 N. E. 437; Parker v. Pa. to danger it holds him to have intended the Co., supra; Conner v. Citizens' St. R. Co. natural consequences of his act, and treats of Indianapolis, 146 Ind. 430, 435, 45 N. E. him as guilty of a willful and intentional 602; Cleveland, etc., R. Co. v. Miller, Adm'r, wrong. It is no defense to a charge of man 149 Ind. 490, 500, 49 N. E. 445; Cincinnati, slaughter for the defendant to show that, etc., R. Co. v. Cooper, Adm'r, 120 Ind. 469, while grossly reckless, he did not actually in 474, 22 N. E. 310, 6 L. R. A. 241, 16 Am. St. tend to cause the death of his victims. In Rep. 334; Brannen v. Kokomo, etc., supra; these cases of personal injury there is a Gregory, Adm'r, v. Cleveland, etc., R. Co., constructive intention as to the consequences 112 I:1d. 385, 387, 14 N. E. 228; Indianapolis which entering into the willful intentional act v. Taylor, supra; Brooks v. Pittsburg Co., the law imports to the offender, and in this supra; Union Traction, etc., Co. v. Lane, supway a charge which otherwise would be mere ra; Overton v. Ind., etc., R. Co., 1 Ind. App. negligence becomes, by reason of a reckless 436, 27 N. E. 651; Barr, Adm'r, v. Chicago, disregard of probable consequences, a willful etc., R. Co., 10 Ind. App. 433, 436, 37 N. E. wrong. That this constructive intention to 814; Dull v. Cleveland, etc., R. Co., supra; do an injury, in such cases, will be imported Pittsburgh, etc., R. Co. v. Judd, 10 Ind. App. in the absence of an actual intent to harm 213, 222, 36 N. E. 775; Louisville, etc., R. a particular person, is recognized in civil ac Co. v. Cronbach, Adm'r, 12 Ind. App. 66, 673, tions for recklessly and wantonly injuring 41 N. E. 15; Miller v. Miller, supra; Hanothers by carelessness.” Aiken v. Holyoke, cock v. Lake Erie, etc., Co., 21 Ind. App. 10, S. & R., 184 Mass, 269, 68 N. E. 238. It is 19, 51 N. E. 369; Indianapolis, etc., R. patent that if a railroad engineer should dis Co. v. Petty, supra; Carter V. Louisville, cover a person upon the track and evidently etc., R. Co., 98 Ind. 552, 556, 49 Am. Rep. unable to escape therefrom that to run him 780; Cincinnati, etc., Co. v. Cooper, 120 Ind. down with knowledge of such conditions and 469, 474, 22 N. E. 340, 6 L. R. A. 241, 16 power not to do so would not only furnish a Am. St. Rep. 334. basis for civil liability, but for criminal The question as to what is recklessness liability of a higher grade than manslaugh and what is due care, in a prosecution for inter, but no one can for a moment maintain voluntary manslaughter, by killing another that such a situation is the only one from in doing an unlawful act, in an unlawful which civil liability for willfulnes arises. It manner, is a question of fact for the jury. is not claimed in tfie case at bar that the Queen v. Cavendish, Ir. Rep. 8 C. 1, 178; appellant or its agents, in charge of the en People v. Thompson, 122 Mich. 411, 81 N. gine, saw appellee until the collision oC W. 344; United States v. Taylor, 5 McLean, curred, and no suggestion of an actual in 242, Fed. Cas. No. 16,441; Rex v. Williamtent to kill or injure him is made, so that son, 3 Car. & P. 635; Regina v. Marlsuss, the verdict cannot rest upon an actual in 4 Fost. & F. 356; Regina v. Long, 4 Car. & tent, as, of course, it might do if murder had P. 398; Rex v. Spiller, 5 Car. & P. 333; been done. Forty years ago the Supreme Com. v. Pierce, 138 Mass. 165, 52 Am. Rep. Court of Indiana, speaking by a judge who 261; State v. Hardister, 38 Ark. 605, 42 has had no superiors in strength of intellect Am. Rep. 5; Rex v. Timmins, 7 Car. & P. and grace of diction, said: "It is well set 499, 32 E. C. L.- The collision complained tled that, where the negligence of the defend of occurred at a public crossing, a place at ant is so gross as to imply a disregard of which the obligations were mutual. “For, consequences or a willingness to inflict the conceding that tlre railway train has the injury, the plaintiff may recover, though he right of precedence of crossing, the parties be a trespasser or did not use ordinary care are still on equal terms as to the exercise of

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