Mobile, Jackson & Kansas City R. R. v. Smith

TYSON, C. J.

— At the time plaintiff received her injuries she was occupying, with her husband, by and with the consent of the defendant, as a dwelling, one of its box cars. This oar was located upon a side track of defendant’s road at or near one of its stations. The occu *130 pancy of the car by the plaintiff as a dwelling covered a period of time of about six months prior to the occasion of her injury. The testimony tended to show not only that the railroad officials knew of her living in this car, but that its employes who were operating the various trains of defendant over its road also knew it. Indeed, the conductor who had charge of the movement of the freight train, which plaintiff’s -testimony tended to show caused the injury complained of, admitted that he knew that plaintiff and her husband were living in the car at the time the injury was inflicted, but that he did not know whether or not she was in the car at that time, but supposed that she was. Her injury was caused by a fall which was occasioned by the car in which she resided being violently struck by a freight car which was kicked into and upon the side track upon which it stood by an engine operated by the defendant’s employes. The trial court, upon the conclusion of the testimony, at defendant’s request eliminated by written charges the plaintiff’s right to recover upon all the counts of the complaint, except the sixth, which predicated her right of recovery upon the willful or wanton conduct of defendant’s servants, and submitted to the determination of the jury the question whether the act of those operating the freight train which caused the injury complained of was willful or wanton. It is here insisted that this was error, and that the affirmative charge on this count should also have been given. The point is pressed that there is no evidence, inferentially or otherwise, tending to show that defendant’s servants knew that plaintiff was in the car at the time it was struck, and, unless they actually knew (not ought to have known) that she was in it, that their conduct did not as matter of law amount to willfulness or wantonness, but at best must be regarded as mere simple negligence.

*131 We apprehend the true rule to be as applicable to this case, as has been frequently announced by this court, that to the implication of willfulness or Avantonness or reckless indifference to probable consequences it is es-essential that the act done or omitted should be done or omitted Avith a knoAvledge and present consciousness that injury Avould probably result; and this consciousness is not to be implied from mere knoAAdedge of the elements of the dangerous situation — for this the party charged may have and yet act only negligently and inadvertently in respect of the peril — but it must be shoAvn, either positively or inferentially, that he willfully or Avantonly or Avith reckles indifference failed to discharge the duty resting upon him, or that he was at the time conscious that his conduct Avould probably result in dis aster. — L. & N. R. R. Co. v. Brown, 121 Ala. 25 South. 609. When the act is done or omitted to be done, under circumstances and conditions knoAvn to the person, that his conduct is likely to or probably will result in injury, and through reckless indifference to consequences he consciously and intentionally does a wrongful act or omits an act, the injury may be said to be wantonly inflicted. — M. & C. R. R. Co. v. Martin, 117 Ala. 367, 382 , 23 South. 231 , and cases there cited. Indeed, Avith respect to the question of Avantonness Arel non, this case is clearly in the category of that class of cases Avhich have been frequently revieAved by this court, Avhen the injury was inflicted at a public crossing in a populous city when it Avas likely that traArelers Avere in the act of crossing and a train of cars Avere voluntarily and unnecessarily rushed over the crossing at a rapid rate of speed, etc. In such cases it has never been deemed essential to a recovery for Avantonness that the plaintiff’s presence upon the crossing should be actually knoAvn to those operating the train. If the conditions — that is, the likelihood of *132 peril to the safety of passers-by — were known to tbe person in control of the train, and through reckless indifference to consequences he consciously and intentionally caused the train to run over the crossing at a reckless rate of speed, this has been uniformly held to amount to wantonness. — L. & N. R. R. Co. v. Webb, 97 Ala. 308 , 12 South. 374 ; Birmingham Ry. & Elec. Co. v. Baker, 132 Ala. 507 , 31 South. 618 ; Highland Ave. & Belt R. R. v. Robbins, 124 Ala. 113 , 27 South. 422 , 82 Am. St. Rep. 153 ; Sou. Ry. Co. v. Crenshaw, 136 Ala. 573 , 34 South. 913 ; Haley v. K. C., M. & B. R. R. Co., 113 Ala. 640 , 21 South. 357 . We need only apply these principles to tbe tendencies of the testimony to see that the trial court correctly submitted the issue of fact of wantonness vel non to the determination of the jury.

The only possible criticism of the oral charge of the court, with respect to the plaintiff’s right to recover punitive damages, to which an exception was reserved, is that it exacted too high a degree of proof of the plaintiff in the use of the word “satisfied.” Of this the defendant cannot complain. In all other respects it was clearly correct. — A. G. S. R. R. Co. v. Burgess, 119 Ala. 555, 564 , 25 South. 251 , 72 Am. St. Rep. 943 . And the only criticism of the written charge given at plaintiff’s request is that it limited the amount of plaintiff’s recovery to $10,000, whereas the complaint claimed $50,000. Of this the defendant cannot complain.

Finding no reversible error in the record, the judgment appealed from must be affirmed.

Simpson, Anderson, and Denson, JJ., concurring.