sold in the village of Oakdale, in West | than any other business from its operation. Boylston; and he occasionally sold a hog to the local butcher. He had no regular route or customers for the sale of the hay, eggs. vegetables, milk, and cider. It does not apper, and is perhaps not material. of how many persons his family consisted, nor how much hay and other produce or how many eggs and hogs he sold. The village of Oakdale was destroyed by the construction of the reservoir, and the petitioner brings this petition to recover the damages thereby caused to his business.

He

It is manifest, also, we think, that the petitioner was engaged in the business of farming. That was the means, and, so far as appears, the only means, whereby he procured a livelihood for himself and his family. The more difficult question is whether, as he carried it on, it was "an established business" within the meaning of the statute. That it was a business "on land in the town of West Boylston would seem to hardly admit of question." In this connection it is to be noted that the business of farming The act under which the petition is is carried on by the petitioner included not brought is entitled "An Act to Provide for a only the raising of farm products, but the Metropolitan Water Supply," and provides selling of a portion of the same. As a farmfor the construction of a reservoir, the ef- er he raised and sold farm products. fect of which will be to submerge certain had owned and had thus carried on the towns and villages, and to destroy a large farm for many years,-fifteen it is said amount of property, and to interfere very in the brief, and, so far as he was conseriously with, if not destroy, in many cases, cerned, the business was an established busibusiness. Ordinarily, the damage done to a ness. It had got beyond the stage of experson's business by the exercise of the periment, and had become his settled and right of eminent domain is not a matter only occupation, and, for aught that appears, for which he is entitled to compensation. furnished a comfortable living for himself But in the present case the legislature has and his family. Any element of uncertainshown a disposition to deal liberally with ty or chance that there may have been about those who would or might be injured by the it at any time had disappeared, and he carrying out of the act. In addition to could and did depend on it from year to providing compensation for real estate tak-year for a livelihood for himself and family. en, and for real estate not taken, but directly | If the persons in Oakdale to whom he sold or indirectly decreased in value, the act his surplus produce had gone to his farm, provides that in certain cases individuals and bought there, or if he had had a shop and firms shall be compensated for damage in the village, there can be no doubt, we done to their business, whether the land on think, that he would have had an estabwhich it is established is taken or not, and lished business on land in West Boylston whether the business is decreased in value within the meaning of the act. It is said, by loss of custom or otherwise. By subse- however, that he had no regular route or quent acts these provisions were extended customers, and that there was nothing in to the towns of Sterling, Boylston, and the the nature of a good will,-such as goes, part of Clinton within the limits of the res- for instance, with a physician's practice; ervoir. Stat. 1897, chap. 445, p. 429: Stat. that, in short, there was nothing in the na1898, chap. 551, p. 666; Stat. 1901, chap. ture of property in the business as carried 505, p. 451. By another act the legislature on by the petitioner, and that it was only went so far as to provide that in certain such cases for which the legislature intended cases the employees of corporations, partner to provide. But this case would seem to ships, and individuals in West Boylston show that there may be an established busishould be entitled to compensation when ness without a regular route or regular custhrown out of work by the taking of the tomers, or anything in the nature of a good property of their employers under the act. will. If these things are present in any Stat. 1896, chap. 450, p. 444. The purpose given case, they show beyond question that of the legislature to deal liberally with those the business is an established business. But affected by the construction of the reser- the words have no settled meaning (Ex parte voir is thus shown, and the provisions now Breull, L. R. 16 Ch. Div. 484), and are to be before us should be construed in accordance construed with reference to the circumwith the intention thus manifested. The stances of each particular case. The petiword "business" is of large significance. tioner had been carrying on the same busiand "denotes the employment or occupation ness, in the same locality, and on and from in which a person is engaged to procure a the same firm, for fifteen years. How can living." Goddard v. Chaffee, 2 Allen, 395. it be said that the business was not an es79 Am. Dec. 796. That farming is a busi- tablished business? Presumably the village ness is plain (Snow v. Sheldon, 126 Mass. | of Oakdale was a small place, and he may 332. 30 Am. Rep. 684), and there is nothing have found it more to his advantage to sell in the statute that excludes it any more where and as he could than to adhere to a

fixed route and regular customers; and so | be altogether destroyed, and the inhabitants an established relation may have existed scattered. Naturally, there would be cases between him and the citizens of that vil in which individuals derived support for lage as to the sale of his farm products. themselves and their families in whole or in It is also to be noted in this connection part from supplying the wants of the people that by the terms of the act compensation living in the towns and villages that would is to be given whether the damage occurs be thus broken up, and whose business by loss of custom or otherwise. The peti- would be very seriously interfered with, if tioner's farm was, as said in Earle v. Com. not altogether destroyed. Such cases might 180 Mass. 579, 583, 57 L. R. A. 292, 91 well appeal to the consideration of the legis Am. St. Rep. 326, 63 N. E. 10, of a doctor's lature, and we think that it was the object office, "the locally established center from of the legislature to provide for them. By which he distributed what he had to sell," the use of the word "established" it inand his business could therefore be fairly tended to exclude cases where the business said to have been an established business had not an element of fixity and permanon land in West Boylston. The fact that ence, and by the use of the words "on land he did not raise things in large quantities, in the town of West Boylston" to confine the or that the farm was a small one, has, of right of recovery to cases which were local course, no tendency to show that the busi- in their character. A majority of the court ness was not an established business. The think that the petitioner's case comes withlegislature did not mean that everyone in in the scope of the statute as thus defined, the towns of West Boylston, Boylston, Ster- and that he is entitled to recover, and that ling, and Clinton who should be injured in judgment should be entered in his favor his business or occupation by the construc- for $150, the amount of the damage found tion of the reservoir should receive compen- by the commissioners, and interest and costs. sation therefor. But by the building of the So ordered. reservoir certain towns and villages would

WISCONSIN SUPREME COURT.

degree of such want of care, so long as the element of inadvertence remains, wilfulness is excluded.

2. The term "gross negligence" sig-
nifies wilfulness. It involves intent, ac-
tual or constructive, which is a characteris-
tic of criminal liability. If one is guilty of in-
advertence causing injury to another. that
one's fault is denominated want of ordinary
care. If one is guilty of wilful misconduct
causing actionable injury to another, the for-
mer's fault is denominated "gross negligence."
3. Since, in the first case suggested, in-
tention to do the injury, actual or con-

| party in the commission of an injury to an-
other, as to become the equivalent of wilful
or intentional injury. Some of the courts
have intimated in strong terms that there is
a decided difference; and in one state the ul-
t'mate court has decided that "negligence,
whether slight, ordinary, or gross. is still neg-
ligence:
negligence is negative in its
nature, implying the omission of duty, and ex-
Icludes the idea of wilfulness.
When
wilfulness is an element in the conduct of the
party charged. the case ceases to be one of
negligence." Terre Haute & I. R. Co. v. Gra-
ham, 95 Ind. 293, 48 Am. Rep. 719.

And in Parker v. Pennsylvania Co. 134 Ind. 673, 23 L. R. A. 552, 34 N. E. 504, it was said that "wilfulness does not consist in negligence; on the contrary, the two terms are incompatible. Negligence arises from inattention, thoughtlessness. or heedless"ers, while wilfulness cannot exist without purpose or design. No purpose or design can be said to

structive, must be absent, and in the second case present, a complaint using language to describe defendant's fault appropriate to both species of misconduct, as if they occurred at one and the same time, and that one included the other, is indefinite and uncertain. 4. Gross negligence does not include ordinary negligence, and proof of the former does not prove, but rather disproves. the latter.

5. Where a complaint is indefinite and uncertain because of the pleader's confusing the element of advertence with that of inadvertence, ordinary negligence with gross negligence, and the attention of the trial court is called thereto. though not in the most approved manner. it should compel the plaintiff to proceed upon one theory or the other, if both theories can

be reasonably spelled out of the pleadings. or give such permissible construction to the

exist where the injurious act results from neg. ligence, and negligence cannot be of such a degree as to become wilfulness."

And the same court has held that the word "wanton." in a complaint in an action against a railroad company for injuring a child. in that the defendant in a wanton and careless manner ran a locomotive, etc., does not mean wilful. Lafayette & I. R. Co. v. Huffman, 28 Ind. 287, 92 Am. Dec. 318.

And also that an allegation in a complaint in an action against a railroad company for causing an injury to the plaintiff, that the train was run "recklessly and with gross neg ligence," does not imply that the injury was inflicted either purposely or wilfully. Cincinnati & M. R. Co. v. Eaton, 53 Ind. 307.

pleadings as to confine plaintiff's claim to one species of wrongdoing.

6. Where a complaint has a double aspect rendering it indefinite and uncertain, as above indicated, it is error to submit the cause to the jury upon both aspects, and, in case error is committed in that regard resulting in a verdict in favor of the plaintiff upon the ground of gross negligence and ordinary negligence as well, it is error to render judg ment thereon, because of inconsistency in the findings.

(December 13, 1904.)

PPEAL by defendant from a judgment A1 of the Circuit Court for Winnebago County in favor of plaintiffs in an action brought to recover damages for the althe defense of contributory negligence does not obtain; and cannot be held as having been intended to submit the case to the jury for consideration as one of that character, and particularly so where other charges have recognized contributory negligence as a defense to the action. Florida Southern R. Co. v. Hirst, 30 Fla. 1, 16 L. R. A. 631, 32 Am. St. Rep. 17, 11 So. 506.

And, as "gross negligence" is not confined to that extreme degree of negligence which evinces reckless disregard of human life or of the safety of persons exposed to its dangerous effects; or a conscious indifference to consequences; or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or a reckless indifference to the rights of others which is equivalent to an intentional violation of them. -it is not proper to charge a jury simply that gross negligence will justify the imposition of exemplary damages. Ibid.

It must be admitted that there are much truth and considerable logic in these statements. But the general trend of decision would appear from the cases to be in favor of the doctrine that an act may be so grossly neg

wilfully or intentionally done. And the last two Indiana cases seem substantially to concede such proposition.

And again, in Louisville, N. A. & C. R. Co. v. Bryan, 107 Ind. 51, 7 N. E. 807, "to say that an injury resulted from the negligence and wilful conduct of another is to affirm that the same act is the result of two exactly opposite mental conditions. It is to affirm in one breath that an act was done through inattention. thoughtlessly, heedlessly, and at the same time purposely and by design." And yet in the same case it was conceded that an act done under such circumstances as evinced a reck-ligent that it may be presumed to have been less disregard for the safety of others, and a willingness to inflict the injury complained of. constituted wilful injury, as fully as an inten tional act. This was approved in Belt R. & Stock Yard Co. v. Mann, 107 Ind. 89, 7 N. E. 893, in which case it was further said that, if the injurious act or omiss'on was committed under such circumstances as that its natural and probable consequences would be to produce injury to others, it would be as effectual to entitle one to recover for an injury to which his own negligence may have contributed as if such act or omission had been purposely and intentionally committed with a design to produce injury.

In Denver & R. G. R. Co. v. Buffehr, 30 Co'o. 27, 69 Pac. 582, the court said: "In passing. we observe that an allegation that an act is wanton, reckless, and grossly negligent is not equivalent to an allegation of a wilful or an intentional act."

The use of the expression "gross negligence," in a charge to the jury, does not of itself de fine, nor does it include only, that extreme de gree of negligence which is wanton or reckless of its injurious consequences, and to which

In RIDEOUT v. WINNEBAGO TRACTION Co. the doctrine is asserted and maintained that "gross negligence" in the commission of an act which perpetrates an injury is the same as, and means and includes, a wilful injury: and, on the other hand, that between what is merely termed negligence, or ordinary negligence, and gross negligence there is a wide distinction,one with a difference,-and that because of it no recovery can be sustained on proof of the former, under a complaint alleging the latter.

II. Allegation of wilful or gross negligence.

In Louisville & N. R. Co. v. Johnston, 79 Ala. 430. the gravamen of the action. as averred in the complaint, was, that the defendant "wilfully refused to stop" the train of cars at the station which was the point of the plaintiff's destination, and carried her several hundred yards beyond the customary stopping place, where she was compelled to alight without her consent and against her protest; and

leged negligent killing of plaintiffs' in- Christian Sarau,-marched in parade fortestate. Reversed.

Statement by Marshall, J.:

Action for damages for the alleged wrongful killing of plaintiffs' intestate. The circumstances stated as a ground for a recovery are substantially these: From June 22, 1897, up to and inclusive of the event complained of, defendant was a corporation duly organized under the laws of this state, and authorized to operate an electric street railway on various streets, including Merritt street, in the city of Oshkosh, Wisconsin. August 24, 1903, the Uniformed Rank, Knights of Pythias in such city, some being on foot and some being in carriages,-one of the former being the court said that, under this averment of the complaint, there could be no recovery in the action, unless the evidence in the case satisfied the jury that the failure of the defendant's servant to stop the train was wilful, and, if it was merely negligent, without more, there would be a fatal variance between the allegations and the proof.

In Birmingham Mineral R. Co. v. Jacobs, 92 Ala. 187, 12 L. R. A. 830, 9 So. 320, the charge, in the first count of the complaint, that the servants and agents of the defendant company negligently, wantonly, recklessly, and wilfully caused, permitted, and suffered the collision of a train under their management and control with a dummy engine, whereby the said intestate was killed, was held not sustained, where there was no testimony tending to show that the collision was "wilfully caused by defendant's servants," but the trend of the whole testimony repelled such inference; and that the refusal of a request so to instruct the jury was error. The court said that this was the identical question which was raised and ruled on in Louisville & N. R. Co. v. Johnston, 79 Ala. 436, and that, while the point might be somewhat technical, they did not feel at liberty to depart from the ruling then made.

mation along the street specially mentioned, escorted by a military band of twenty-four pieces discoursing music. Some of the marchers, including Sarau, in the exercise of ordinary care, walked between the rails of defendant's track located on such street, and others walked on either side thereof. While so doing defendant's servant with one of its cars approached the procession from the rear at a dangerous rate of speed, without giving any sufficient warning to the marchers to yield the right of way before reaching them. The car, going at such dangerous rate of speed, without sufficient warning being giv en as aforesaid, was carelessly, negligently, recklessly, and wantonly propelled into the cases, that a charge that the act complained of was wilful, or that it was knowingly done, cannot be supported by evidence of mere negligence, not involving wilfulness or knowledge of the danger, was affirmed, and the cases themselves were approved, in Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 So. 262. The court in this case gave, by inference at least, an additional argument why this principle should be maintained, and stated that it had been held that a plea of contributory negligence to a complaint charging a wilful infliction of injury by the defendant is bad on demurrer; citing Alabama G S. R. Co. v. Frazier, 93 Ala, 45, 30 Am. St. Rep. 28, 9 So. 303, the inference being that, if a plaintiff should allege in his complaint that the injury was caused by the wilfulness of the defendant, or that it was knowingly done, and the plaintiff was permitted to recover by proof of mere negligence, the defendant would be deprived of h's defense of the contributory negligence of the plaintiff, as, under the decision in the Frazier Case, a demurrer to such a defense would be good.

And this theory would seem to be confirmed in another case, which decided that, where a count in a complaint against a railroad company for injury charged in one clause that the injury was wantonly inflicted, and the other clause set out the facts constituting the al

construed together, as it must be, it was evident that the facts relied upon to show wantonness amounted to no more than simple negligence, a demurrer thereto should be sustained. Memphis & C. R. Co. v. Martin, 117 Ala. 367, 23 So. 231. The reason undoubtedly was that, although the defense of contributory negligence to a complaint alleging that the injury was wantonly inflicted would be demurrable, the plaintiff should not be permitted, by the use of the epithet "wantonly" in a general attempt to describe the injury,-which the facts alleged showed to be a case of ordinary negligence, thus to deprive the defendant of his proper defense of contributory negligence.

In Highland Ave. & Belt R. Co. v. Winn, 93 Ala. 306, 9 So. 509, where both counts of a complaint alleged that the plaintiff attempted to get off the defendant's train, after protest-leged wanton conduct; and, from the whole ing against being required to do so, through fear superinduced by the threatening attitude of the conductor; and the first count further averred that the fall she received in making this coerced attempt was caused by the "wrongful and malicious act of the conductor" in requiring or forcing her to get off while the train was in motion; and in the second count the fall was ascribed to the "wilful and negligent acts of the conductor and engineer," the court, in reversing a judgment for the plaintiff, said that the doctrine of the court is that under such a complaint no recovery can be had for mere negligence; that wilfulness or its equivalent, recklessness, or wantonness must be proved; citing and approving Louisville & N. R. Co. v. Johnston, 79 Ala. 436, and stating that the principle of that case was adhered to and reannounced in Birmingham Mineral R. Co. v. Jacobs, 92 Ala. 187, 12 L. R. A. 830, 9 So. 320.

The principle laid down in the last three

Where a count in a complaint against a railroad company for causing injury to the plaintiff alleged that the defendant knew of plaintiff's danger, "and could. by the exercise of proper diligence, have prevented his injuries as aforesaid, which it negligently failed to do," the rgligence thus averred being the equiva

In Lev'n v. Memphis & C. R. Co. 109 Ala. 332, 19 So. 395, the counts upon which the trial was had claimed damages resulting from the defendant's wantonness or wilfulness and there was no evidence of wantonness or wilfully, and either wantonly, recklessly, wilfully, or ness. This being so. the court said that, conceding for the argument that the evidence tend ed to show negligence on the part of the de fendant, this did not authorize a recovery on the case made by the complaint: and an affirmative charge for the defendant was sus tained.