J.— (After making the foregoing statement) : The first contention of counsel for the appellant is that the contract between the railway company and the show company is void. Their reasoning is *81that if the contract is void, then the ordinary relation of passenger and carrier existed between Dierickx and the railway company; and that, because of the relation thus existing, the railway company is liable to Dierickx for the damages resulting from the negligence which was the proximate cause of his injuries.
*82*81The contract between the railway company and the show company is not void on the principle of the common law, which, on the ground of public policy, does not permit a common carrier to contract against liability for its own negligence. The service required by the show company in order that its itinery might be fulfilled, was special. If its engagements to give exhibitions at the various towns were to be punctually kept, its outfit must move on a time schedule peculiarly its own, and must move as an entirety. Its tents and trappings, its uncommon vehicles, its wild and domestic animals, and its numerous employes, must go together. For these and other reasons, it was impracticable, if not impossible, to use the railway company’s equipment or its regular trains. It is apparent, and the important fact is, that the show company was not seeking transportation for persons and property in the usual course of the business of a common carrier by rail. It sought to have its own train of cars moved from place to place on a time schedule suitable to its own peculiar purpose. From the very nature of the service desired, and from the situation of the parties, it is clear that the property and employes of the show company were not to be entrusted to the railway company in the manner in which freight and passengers are entrusted to a common carrier. The railway company might have refused absolutely to receive or to haul the cars, of the show company; for the railway company did not hold itself out as engaging in the business of haul*82ing or moving trains for others. It follows, then, that the railway company had the right to enter into the contract with the show company on the conditions therein stated. The contract is valid; and in the performance thereof, the railway company was not acting as a common carrier. Cleveland, etc., R. Co. v. Henry (1908), 170 Ind. 94, 83 N. E. 710; State v. Cadwallader (1909), 172 Ind. 619, 87 N. E. 644, 89 N. E. 319; Kelley v. Grand Trunk, etc., R. Co. (1911), 46 Ind. App. 697, 93 N. E. 616; Robertson v. Old Colony Railroad (1892), 156 Mass. 525, 31 N. E. 650, 32 Am. St. 482; Coup v. Wabash, etc., R. Co. (1885), 56 Mich. 111, 22 N. W. 215, 56 Am. Rep. 374; Mehegan v. Boyne City, etc., R. Co. (1912), 178 Mich. 694, 141 N. W. 905, 148 N. W. 173, L. R. A. 1915E 1170; Chicago, etc., R. Co. v. Wallace (1895), 66 Fed. 506, 14 C. C. A. 257, 30 L. R. A. 161; Chicago, etc., R. Co. v. Maucher (1918), 248 U. S. 359, 39 Sup. Ct. 108, 63 L. Ed. 294; Clough v. Grand Trunk Western R. Co. (1907), 155 Fed. 81, 85 C. C. A. 1, 11 L. R. A. (N. S.) 446; Wilson v. Atlantic Coast Line R. Co. (1904), 129 Fed. 774. The underlying principle is thoroughly discussed in Baltimore & Ohio Southwestern Railway Co. v. Voigt (1899), 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560; see note to Louisville, etc., R. Co. v. Church (1908), 130 Am. St. 29; and note to Atchison, etc., R. Co. v. Homewood (1912), 48 L. R. A. (N. S.) 990.
Counsel for the appellant insist, however, that the contract is in violation of certain acts of Congress, commonly known as the Hepburn Act (34 Stat. at L. 584) and the Carmack Amendment (§§8604a, 8604aa U. S. Comp. Stat. 1918) and they argue that the filing of the tariff is inconsistent with the claim that the service was rendered by the railway company otherwise than as a common carrier. Whether the *83document filed with the Interstate Commerce Commission is in any proper sense a tariff, and whether the statutes require the filing of a tariff in a case like this, are questions we need not decide. The purpose of a tariff is to prevent unreasonable discrimination. Had some other show company applied for like service, it might have had a legitimate interest in the tariff; but the appellant has no such interest. However, we find nothing in the statutes to which appellant has directed our attention, that prohibited the making of the contract.
The authorities are unanimous in holding that a railway company, although distinctively a common carrier when engaged in the performance of its legal duties, nevertheless, when acting in matters not within the scope of its legal duties, may contract as a private carrier and may lawfully provide in such a contract that it shall not be liable for injury to persons or property caused by its negligence. The appellant, an employe of the show company, having accepted transportation under the contract, is bound by its terms. Therefore, he cannot recover on the theory of negligence.
There is another phase of this case which must now be considered. It is an established rule of construction that all contracts limiting the liability of a common carrier must be strictly construed against the carrier. The spirit of that rule is applicable here. Accordingly we construe that part of the contract which stipulates that the railway company shall not be liable for injury “arising from any cause whatever” to mean injury due to negligence arising from any cause whatever. In other words, when all the provisions relating to nonliability are considered together they disclose that the show company intended thereby to grant, and the railway company intended thereby to acquire, immunity from liability on account of negli*84gence only; and that the parties did not contemplate immunity from liability for injury willfully and intentionally inflicted. If the parties had included the element of willful and intentional injury, to that extent the contract would have been void. The railway company, then, owed the duty to the appellant not to willfully injure him. He was not a trespasser; but even if he had been a trespasser on the track, nevertheless the railway company would have owed him that duty. Cincinnati, etc., R. Co. v. Eaton, Admr. (1876), 53 Ind. 307; New York Central R. Co. v. Mohney (1920), 252 U. S. 152, 40 Sup. Ct. 287, 64 L. Ed. 502, 9 A. L. R. 496.
In this jurisdiction there is a clear distinction between a negligent tort and a willful tort—between carelessness and willfulness. Pennsylvania Co. v. Sinclair, Admr. (1878), 62 Ind. 301, 30 Am. Rep. 185; Indianapolis, etc., R. Co. v. McClaren, Admr. (1877), 62 Ind. 566; Terre Haute, etc., R. Co. v. Graham (1883), 95 Ind. 286, 48 Am. Rep. 719; Ivens v. Cincinnati, etc., R. Co. (1885), 103 Ind. 27, 2 N. E. 134; Chicago, etc., R. Co. v. Hedges, Admr. (1885), 105 Ind. 398, 7 N. E. 801; Louisville, etc., R. Co. v. Schmidt (1886), 106 Ind. 73, 5 N. E. 684; Louisville, etc., R. Co. v. Bryan (1886), 107 Ind. 51, 7 N. E. 807; Gregory, Admr., v. Cleveland, etc., R. Co. (1887), 112 Ind. 385, 14 N. E. 228; Wabash, etc., R. Co. v. Locke, Admr. (1887), 112 Ind. 404, 14 N. E. 391, 2 Am. St. 193; Parker, Admr., v. Pennsylvania Co. (1893), 134 Ind. 673, 34 N. E. 504, 23 L. R. A. 552; Cleveland, etc., R. Co. v. Miller, Admr. (1898), 149 Ind. 490, 42 N. E. 445; Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62, 62 N. E. 694; Dull v. Cleveland, etc., R. Co. (1899), 21 Ind. App. 571, 52 N. E. 1013; Southern R. Co. v. McNeeley (1909), 44 Ind. App. 126, 88 N. E. 710; Stauffer v. Schlegel (1920), 74 Ind. App. 431, 129 N. E. 44; Pittsburgh, etc., R. Co. v. Nichols, Admr. (1922), 78 *85Ind. App. 361, 130 N. E. 546. See, also, Pittsburgh, etc., R. Co. v. Ferrell (1906), 39 Ind. App. 515, 78 N. E. 988, 80 N. E. 425. As evidenced by the foregoing cases, the hiatus between negligence and wilfulness is complete and absolute. There is no middle' ground. Negligence cannot merge into willfulness.
There is an early case in seeming conflict with the cases last above cited. Lafayette, etc., R. Co. v. Adams (1866), 26 Ind. 76. But the language of the Adams case has been expressly disapproved. Cincinnati, etc., R. Co. v. Eaton, Admr., supra; Terre Haute, etc., R. Co. v. Graham, supra.
What is the theory of each paragraph of the amended complaint? That pleading is not skillfully drawn. In the first, and also in the second, paragraph the pleader attempts to combine negligence and willfulness. The two theories cannot legitimately be pleaded in the same paragraph. To an action on the theory of negligence, contributory negligence is a defense; but contributory negligence is not a defense to an action on the theory of willfulness. The character of a pleading must be determined from its general scope and not from the epithets cast into it. There is no escape from the conclusion that the theory of the first, as well as the second, paragraph of the amended complaint is negligence. Louisville, etc., R. Co. v. Schmidt, supra; Stauffer v. Schlegel, supra.
What is the theory of the third paragraph? If the averment of the plaintiff’s freedom from negligence and the averment of the defendant’s duty, be disregarded as mere surplusage, then it may be said that the theory of the third paragraph is willfulness. The averments of willfulness are that the defendant “willfully, deliberately and intentionally * * * set in motion and propelled forward the above mentioned special (troop) train at a high rate of speed *86without keeping and maintaining any lookout for such warning signals;” and that, notwithstanding the danger signals, the defendant “deliberately and willfully drove and propelled said special train into the rear of the above-named circus train.”
No paragraph of the complaint has been tested by demurrer, and we shall express no opinion as to the sufficiency thereof. We have considered the complaint for the sole reason that before the question arising on the evidence can be accurately and confidently determined, a clear conception of the theory of each paragraph is essential. To say that the complaint may be judged on one theory and the evidence on a different theory, would be to state an absurdity.
The question we have now to determine is whether there is any evidence in the record which tends fairly to support the theory of the third paragraph. Does the evidence adduced by the plaintiff tend fairly to prove the essential averments of that paragraph ? Is there any proof of willfulness ? In the law of torts “willfulness” has a well-established meaning. To do a tortious act willfully is to do it intentionally, purposely, designedly. No one can inflict a willful injury without being guilty of conduct which is either criminal or quasi criminal. Louisville, etc., R. Co. v. Bryan, supra; Belt Railroad, etc., Co. v. Mann (1886), 107 Ind. 89, 7 N. E. 893; Brooks v. Pittsburgh, etc., R. Co. (1902), 158 Ind. 62, 62 N. E. 694; Pittsburgh, etc., R. Co. v. Ferrell, supra; Manlove v. Cleveland, etc., R. Co. (1902), 29 Ind. App. 694, 65 N. E. 212. How may the intent of the wrongdoer be proved? Like most other facts, it may be proved by circumstantial evidence. In other words, willfulness may be inferred from the circumstances. But it will not do to say that willfulness may be inferred from negligence. Proof of negligent conduct, however flagrant, cannot be proof of will*87fulness; for, whenever negligence has been established, the very opposite of willfulness has been established. If, on the ground of expediency rather than truth, the courts should hold that willfulness may be inferred from negligence, it would be a simple trick to charge willfulness in the complaint, thereby depriving the defendant of the defense of contributory negligence, and then to recover on proof of negligence. We are aware of certain statements in some of the decisions in this jurisdiction which seemingly countenance the view that willfulness may be inferred from negligence; but those statements are vague and general, and are in direct conflict with specific statements to the contrary in the same cases. Those general statements must be regarded—■ we say it with deference—as instances of careless expression; and they have been discountenanced by the latest decisions. Fort Wayne, etc., Traction Co. v. Justus (1917), 186 Ind. 464, 115 N. E. 585. It is elementary that one cannot act intentionally unless he acts consciously. Knowledge of the facts involved is essential to intent. Smith v. State (1879), 2 Lea (Tenn.) 614; Powe v. State (1886), 48 N. J. Law 34, 2 Atl. 662; Perugi v. State (1899), 104 Wis. 230, 80 N. W. 593, 76 Am. St. 865; First Nat. Bank v. Swan (1890), 3 Wyo. 356, 23 Pac. 743; Georgia, etc., R. Co. v. Lee (1890), 92 Ala. 262, 9 So. 230; Brim v. Alexander (1915), 185 Mo. App. 599, 172 S. W. 480.
The most striking thing about this evidence is the utter absence of any fact tending to prove willfulness on the part of the men, or any one of them, who were in charge of the troop train. The conductor was in the second coach. He did not see, he could not see, and it was not his duty to see, the block signals. His first intimation of anything unusual was when he felt the application of the air brakes, just as the collision occurred. We know that there were two trains on one track,' both *88headed in the same direction; that the first~sne stopped; that there were certain danger signals in the rear of the circus train; that those signals had no effect on the troop train; that the night was dark and cold; and that there was a rear-end collision, resulting in severe injury to the plaintiff. From these facts we must determine by inference why the troop train ran by the signals and into the circus train. That the engineer was negligent is a conclusion which may be legitimately drawn from the evidence. That the engineer and the fireman, or either of them, consciously, knowingly, intentionally, designedly, and willfully disregarded the duty to look for danger signals; or that the engineer, in like manner, ran and propelled his train against the circus train, cannot be legitimately inferred from the evidence. The conclusion that the collision was due to the willfulness of all, or of any, of the men in charge of the troop train, cannot be reached without doing violence to both reason and conscience. If the engineer was conscious of the fact that another train was on the track just ahead of him, then we must presume that he was conscious of his own danger and that the instinct of self-preservation would have deterred him from driving his locomotive at a high rate of speed into such a formidable obstacle. We must also presume that the engineer was a man of normal sensibilities and that, if he had been conscious of any impending danger, either to himself or to anyone, he would not have ruthlessly precipitated that danger. The trial court did not err in directing the verdict.
Our attention has been called to certain federal cases (New York, etc., R. Co. v. Mohney, supra; McCree v. Davis [C. C. A.] 280 Fed. 959) which are not in-harmony with the Indiana decisions; and' counsel for appellant contend that Dierickx was on an interstate journey at the time of the collision and *89that therefore this case is governed by federal law. We are of the opinion that it is immaterial whether Dierickx was on an intérstate or intrastate journey. We are dealing with a common-law action arising out of tort; no federal statute is involved; the action was instituted in a court of this state; and therefore it is governed by the law of this state. Furthermore, the ultimate question is one of fact for the court, and must be determined from the evidence in this record, not from the evidence in some other record.
It is to be understood, of course, that the managing officials of the railway company were in fact representatives of the United States Railroad Administration; and the terms “railway company” and “carrier,” as used in this opinion are to be taken accordingly.
By virtue of §206, Transportation Act 1920 (41 Stat. at L. 461), James C. Davis, Agent, has been substituted for the original appellee.
The judgment is affirmed.
McMahan, J., not participating.