Note 223 — CULBERTSON v. CRESCENT CITY RAILROAD CO. Supreme Court, Louisiana, April 6, 1896. Reported in 48 Louisiana Annual Reports, Part 2, 1376.

Carrington v. Louisville R. Co., 88 Ala. 472; Wood v. Los Angeles R. Co., 172 Cal. 15; Rowen v. New York R. Co., 59 Conn. 364; Florida R. Co. v. Hirst, 30 Fla. 1; Louisville R. Co. v. McCoy, 81 Ky. 403; Davis v. Saginaw Bay R. Co., 191 Mich. 131 Accord. Compare Magar v. Hammond, 171 N. Y. 377.

“Mere negligence which gives a cause of action is the doing of an act, or the omission to act, which results in damage, but without intent to do wrong or cause damage. To constitute a wilful injury, there must be design, purpose, intent to do wrong and inflict the injury. Then there is that reckless indifference or disregard of the natural or probable consequence of doing an act, or omission of an act, designated whether accurately or not, in our decisions, as ‘wanton negligence,’ to which is imputed the same degree of culpability and held to be equivalent to wilful injury. A purpose or intent to injure is not an ingredient of wanton negligence. Where either of those exist, if damage ensues, the injury is wilful. In wanton negligence, the party doing the act, or failing to act, is conscious of his conduct, and without having the intent to injure, is conscious, from his knowledge of existing circumstances and conditions, that his conduct will likely or probably result in injury. These are the distinctions between simple negligence, wilful injury, and that wanton negligence which is the equivalent of wilful injury, drawn and applied in our decisions. A mere error of judgment as to the result of doing an act or the omission of an act, having no evil purpose or intent, or consciousness of probable injury, may constitute simple negligence, but cannot rise to the degree of wanton negligence or wilful wrong....” Coleman, J., in Birmingham R. Co. v. Bowers, 110 Ala. 328, 331.

“The mere intentional omission to perform a duty or the intentional doing of an act contrary to duty, although such conduct be culpable and result in injury, without further averment, falls very far short of showing that the injury was intentionally or wantonly inflicted. Unless there was a purpose to inflict the injury, it cannot be said to have been intentionally done; and unless an act is done, or omitted to be done, under circumstances and conditions known 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 cannot be said to be wantonly inflicted. These principles have been frequently declared by this court....” Coleman, J., in Memphis R. Co. v. Martin, 117 Ala. 367, 382.

Central R. Co. v. Newman, 94 Ga. 560; Lafayette R. Co. v. Adams, 26 Ind. 76; Chicago R. Co. v. Bills, 118 Ind. 221; Alger v. Duluth-Superior Traction Co., 93 Minn. 314; Jensen v. Denver R. Co., 44 Utah, 100; Boggess v. Chesapeake R. Co., 37 W. Va. 297; Astin v. Chicago R. Co., 143 Wis. 477 Contra. But see Jaggard, J., dissenting, in Anderson v. Minneapolis R. Co., 103 Minn. 224, 230.

“For a motorman to be inattentive to the way ahead of him is so palpably negligent that it partakes of the nature of a reckless and wanton act. Therefore a defendant in an action of this character will not be heard to say that its motorman did not see the situation of the injured person where it was open to his view nor did not realize the peril where the indications would have disclosed it to any reasonable mind. Charged with the knowledge of the peril of another that could have been obtained by the use of ordinary care, a failure on the part of a motorman to make every reasonable effort to avoid injuring the endangered person would be in the highest degree wrongful, since it would be negligence committed with the knowledge that another certainly and immediately would be injured thereby. The principles of right and justice do not tolerate the idea that the negligence of the person imperilled involved in his act of placing himself in position to be injured without giving proper heed to his own safety can coöperate with the negligence of one who comprehending his danger or being in a position to comprehend it by the use of ordinary care and having at hand the means and opportunity of avoiding it, fails to reasonably employ them and by such failure inflicts an injury. Such negligence engrosses the entire field of culpability and eliminates contributory negligence as a factor in the production of the injury. It logically follows from the principles stated that the issue of negligence in the performance of the humanitarian duty must be governed by the rules applicable to ordinary negligence. The determinative question in all such cases is, did the operators of the car use ordinary care to ascertain the peril of the plaintiff and to avoid the injury after they discovered it or should have discovered it? In some of the decisions of the Supreme Court the idea appears to be expressed that in order to find a defendant guilty of a breach of the humanitarian rule the elements of wantonness and wilfulness must appear in its conduct, but as we have attempted to show the mere failure to observe ordinary care in situations of this character is of itself a wanton act since it is abhorrent not only to fundamental principles of law but to the dictates of common humanity. The views expressed are supported by the weight of authority in this state, including the most recent decisions of the Supreme and Appellate courts....” Johnson, J., in Cole v. Metropolitan R. Co., 121 Mo. App. 605, 611.