Respondent petitions for a rehearing on two grounds: First, the insufficiency of the complaint; second, insufficiency of the evidence to entitle the case to be submitted to the jury.
Upon the second of these points we are still of the opinion that the court erred in granting defendant's motion for nonsuit.
Upon the first point, it is perhaps due to defendant that we express an opinion, inasmuch as it is claimed that at the oral argument attention was called to it, although in respondent's brief the point was not alluded to and might, for that reason, be disregarded. (People v. Northey, 77 Cal. 635, [19 P. 865, 20 P. 129]; Phelps v. Mayer, 126 Cal. 551, [58 P. 1048].)
The complaint charged that defendant by its agents and servants "carelessly and negligently and willfully and wantonly . . . ran one of its street-cars upon, knocked down, ran over and killed said Philip Kramm." There was a demurrer *Page 617 to the complaint for insufficient facts and also for uncertainty because it could not be ascertained therefrom whether plaintiff claimed damages for the alleged careless and negligent conduct of defendant or whether damages were claimed for the alleged willful and wanton conduct of defendant. The demurrer was overruled and the case went to trial on the complaint and answer. It is now urged "that plaintiff cannot recover in any event by reason of her complaint, which does not state facts sufficient to constitute a cause of action. In other words, that there cannot be carelessness, negligence, willfulness and wantonness at the same time." No question as to ambiguity or uncertainty being urged in the petition for rehearing, we need not consider that ground of the demurrer.
In Esrey v. Southern Pacific Co., 103 Cal. 541, [37 P. 500], the complaint at the first trial (88 Cal. 399, [26 P. 211]), charged that defendant carelessly and negligently "ran one of its cars against plaintiff," etc. When the cause was tried the second time the complaint was amended so as to charge the acts of defendant to have been also "willfully and wantonly" done. The court said: "In view of the suggestion of the court made at the time the case was previously before us, the plaintiff prior to the present trial in the court below amended her complaint, by charging the acts of the defendant to have been willfully and wantonly done. Conceding this form of allegation necessary to support the judgment — and the law of the case would seem to so declare — still we do not think the cause of action has been materially altered by the amendment, and consequently the plea of the statute of limitations is not well taken. That amendment pertains wholly to the manner in which the injury was inflicted, and actual damage is all that is sought to be recovered. The gist of the action is a claim for actual damages for personal injuries inflicted by defendant's moving cars, and these are the facts found stated in the original complaint." And it was held that the form of the action was unchanged by adding to the charge of simple negligence and carelessness the element of wantonness. To constitute wantonness in the eye of the law it is not necessary to allege or show an intent to injure. Gross negligence, or what is sometimes called the "last" negligence, may be the equivalent of willful or wanton negligence; and *Page 618 where the conduct of defendant exhibits reckless indifference to probable consequences, with knowledge of facts and circumstances likely to result in injury, it becomes wanton negligence. (Harrington v. Los Angeles Ry. Co., 140 Cal. 514, [98 Am. St. Rep. 85, 74 P. 15].) The claim that there cannot be carelessness, negligence, willfulness and wantonness at the same time cannot be maintained. It is true that carelessness does not necessarily imply wantonness but as wantonness may exist without intent to injure, it certainly may imply carelessness. To do an act in reckless disregard of consequences, though not intending thereby to do injury, is to do the act in a careless and negligent manner and would also, under some circumstances, be wantonly done. It was not necessary to sustain the action that the act of defendant be shown to have been wantonly and willfully, as well as carelessly and negligently, done. The fact that the manner of doing the act was charged in the conjunctive did not deprive plaintiff of the right to show what happened and to recover accordingly.
We violate no rule of pleading in holding that the complaint was sufficient as we understand the case ofEsrey v. Southern Pacific Co., 103 Cal. 541, [37 P. 500].
The petition is denied.
Buckles, J., and McLaughlin, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court July 12, 1906. *Page 619