Further, it must be obvious under the present allegation that such a movement from the track could have been executed by the decedent in less time than it would have taken for the defendant's engineer to have stopped his locomotive as the allegations of the complaint would require him to do.
It is to be noted that the complaint speaks of the fact that the engineer "noticed" the boys, and "noticed" the train approaching in the opposite direction. Such action upon the part of the defendant's engineer cannot be pleaded by the plaintiff in that manner. The engineer himself would be the only person who could declare that he "noticed" the boys or the train. This portion of the complaint can have no more value than an allegation declaring that the boys were on the track and a train was approaching in the opposite direction and that the engineer could have seen them if he were looking. Of course, even a basic statement of such character would not sustain the ultimate allegation of "willful negligence."
The court will not undertake to differentiate between the pleading of facts and conclusions of law. Confusion on this subject has existed for many years. So long as the line of demarcation between the two categories remains a fading transition, the confusion also will remain. From what may be gleaned from the allegations one cannot discern whether or not it was within the power of the decedent to remove himself from the zone of danger. Surely, if that were true the dictates of public policy would command that the burden of avoiding the accident would be upon the decedent rather than the operator of the moving train. On the other hand, if the decedent were unable absolutely to remove himself from the point of danger it should have been alleged that he was vainly attempting to extricate himself, that the engineer of the oncoming train was in a position to observe his predicament so many yards from the victim, that it was reasonably within his power to avoid the accident, but that he disregarded this duty and willfully ran upon and injured the decedent. Allegations in this form would leave no room for conjecture. The enumeration of the chain of events would substantiate a conclusion of intentional conduct on the part of the engineer.
It is a general rule of law that the engineer of a moving locomotive may presume that one trespassing upon its right of way will endeavor to avoid the accident. Young v. South Georgia Ry. Co., 34 Ga. App. 537, 130 S.E. 542, 543; Fierro v. New York Central R. Co. et al., 256 N.Y. 446, 176 N.E. 834, 835.
In Young v. South Georgia Ry. Co. the court observed: "It is the rule that the operatives of a railway train are not ordinarily bound to anticipate the presence of trespasser upon its right of way, and that the only duty which a railway company ordinarily owes to a trespasser upon its property is not to injure him wantonly or willfully after his presence has been actually discovered; that, while the failure to exercise ordinary care to prevent his injury after his presence has been ascertained may amount to wanton negligence, the company is ordinarily authorized to act upon the presumption that trespasser, apparently of full age and capacity, who is seen standing or walking upon or along the track, will leave it in time to protect himself, and that the duty of exercising special precautions to protect such a trespasser when discovered arises only when it is reasonaly apparent that for some reason he is off his guard or incapacitated to protect himself. See Tice v. Central of Ga. Ry. Co., 25 Ga.App. 346, 103 S.E. 262, and cases therein cited."
In the case of Fierro v. New York Cent. R. Co. et al., the court stated: "The decisions of the courts of this state as well as those of the federal courts preclude any possibility of affirming this judgment. As early as Chrystal v. Troy & Boston R. Co., 105 N.Y. 164, 11 N.E. 380, was formulated a rule that a locomotive engineer, seeing a person on the track at a time when his train is perfectly visible, may assume that such person will leave the track in time to escape injury, and, without imputation of negligence, may continue his run until he discovers that the person is heedless of danger. This rule was repeated and even more strictly applied in O'Brien v. Erie R. Co., 210 N.Y. 96, 103 N.E. 895, where we held that an engineer has the right to assume that one whom he sees on the track repairing it will leave it in time to escape injury, and that a jury may not infer negligence from the engineer's failure to keep a vigilant outlook, to sound a warning, or to slow down his train when rounding a curve at a speed of fifty miles an hour."
Therefore, the court is constrained to hold that plaintiff has not properly pleaded willful negligence in his complaint so as to bar the raising by the defendant of the provisions of section 55 of the New Jersey Railway and Canal Act, because the complaint does not sufficiently allege the decedent's position of inescapable danger and because the allegations of intentional conduct upon the part of defendant's engineer fail of support by basic allegations.
The plaintiff has moved to amend the complaint by supplying the words "or wanton" after "willful" and before "negligence" in the fourth and fifth paragraphs thereof. The addition of the adjective "wanton" would lend no utility to the pleading and would reflect no change in the result of this consideration.
Therefore, the amendment will be denied and the complaint dismissed.
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