Concurring- Opinion.
Wiley, J.The facts pleaded and those disclosed by the evidence are so fully and fairly stated in the prevailing opinion that it is unnecessary to restate them here as a basis for the expression of the individual views which I entertain upon the vital questions involved in this appeal.
The appellee bases his right to recover upon the acts of appellant, as stated in the complaint, which acts are characterized as wilful. In other words, the appellee charged in his complaint that appellant “wilfully, purposely, and recklessly” inflicted injury upon him, and hence the judgment in his favor rests upon a wilful act of appellant, resulting in injury. It is important to understand what is meant in the use of the word “wilful,” or wilfully, as used in the complaint. It is “ The quality of being wilful; obstinacy ; stubborness; perverseness; voluntariness.’ ” Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571. It was said in In re Young & Harston’s Contract (1885), 31 Oh. D. 168, that wilful “is a word of familiar use in every branch of law, and although in some branches of the law it may have a special meaning, it generally, as used in courts of law, implies nothing hlamable, but merely that the person of whose action or default the expression is used, is a free agent, and that what has been done -arises from the spontaneous action of his will. It amounts to *526nothing more than this, that he knows what he is doing, and intends to do what he is doing, and is a free agent.” We quote the following from Fuller v. Chicago, etc., R. Co. (1871), 31 Iowa 187: “It is said by defendant’s counsel that the word 'wilfully’ implies the idea of malice of a mild kind, an evil intent without excuse. Such may be its meaning in indictments and criminal statutes. But it is not to be so understood here. The word means, 'obstinately, stubbornly; with design; with a set purpose,’ and this definition must be applied to it where it occurs in the statute under consideration.” In Louisville, etc., R. Co. v. Bryan (1886), 107 Ind. 51, appellee sued to recover damages for a team of horses killed. One paragraph of his complaint was based upon wilfulness, and the charging part of that paragraph was as follows: “And that said collision was caused by the reckless, negligent, and wilful conduct of said employes and servants of said defendant in the management of said locomotive, in this, to wit: That said locomotive was being propelled at an exceedingly high and dangerous rate of speed, and was being propelled backwards, and that the whistle 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 extra dangerous by the track’s being hidden from view for some distance by intervening buildings, all of which was well known to said defendant, and its servants.” It was held that the complaint did not charge wilful injury, and in deciding the question Mitchell, J., said: “To constitute a wilful injury, the act which produced it must have been intentional, or must have been done under such circumstances as evinced a reckless disregard for the safety of others, and a willingness to inflict the injury complained of.”
In the case from which I have just quoted it was held that the facts charged failed to bring the case within either of the conditions expressed, or to indicate an actual or con*527structive 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, under the circumstances detailed, evinced a reckless disregard for the safety of others, and a willingness to inflict the injury. “Wilfulness,” as used in the complaint, cannot exist without purpose or design. Parker v. Pennsylvania Co. (1893), 134 Ind. 673, 23 L. R. A. 552; Belt R., etc., Co. v. Mann (1886), 107 Ind. 89. A person may be held liable for the consequences of a wilful 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 v. Pennsylvania Co., supra. This statement of the law is the key to the solution of the question of wilfulness as presented by the complaint.
The case I am considering presents no stronger case of wilfulness than the cases of Louisville, etc., R. Co. v. Bryan, supra, and Belt R., etc., Co. v. Mann, supra. Here appellee states three facts which he insists constitute wilfulness: (1) High and excessive rate of speed; (2) a public highway, crossing appellant’s track, which was frequently used by the public; (3) appellant knew that it was so used. It may be observed that it is charged that White-land, through which appellant’s train was being run, was an incorporated town, yet it is not charged that said train was run in violation of any ordinance limiting the speed of trains within the corporate limits of said town. 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., R. Co. v. Barnes (1906), 166 Ind. 7, and authorities 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 *528over a 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 of passing 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 wilfulness. I also recognize that, in an action to recover damages resulting from a wilful 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 sixty miles an hour, do not, in my judgment, constitute wilfulness, 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., R. 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 case last cited that there is no distinction to be *529drawn, except here the language used and facts stated are made the basis of a wilful act, while in that case they are made the basis of a negligent act. The employes 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 at which it was scheduled to run. There is a line of cases holding that in a complaint which seeks redress for a wilful injury involving, as it does, conduct which is qwm-eriminal, it must be averred that the-injurious act was purposely and intentionally committed, with the intent wilfully and purposely to inflict the injury complained of. Union Traction Co. v. Lowe (1903), 31 Ind. App. 336; Gregory v. Cleveland, etc., R. Co. (1887), 112 Ind. 385; Kalen v. Terre Haute, etc., R. Co. (1897), 18 Ind. App. 202, 63.Am. St. 343; Walker v. Wehking (1902), 29 Ind. App. 62; Indianapolis St. R. Co. v. Taylor (1902), 158 Ind. 274. 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 wilfulness, 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 *530only that, but such a rule carried to its logical conclusion would render the servants and employes 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 ease 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 wilfulness, the demurrer to it should have been sustained. The facts, also, which are fully stated in the prevailing opinion, do not support the judgment.,