delivered the opinion of the court:
This is an appeal from a judgment of the Appellate Court for the First District affirming a judgment of the circuit court of Cook county, in favor of appellee and against appellant. The action was for a personal injury to Peter O’Connor. The declaration in some of the counts charged the defendant with wanton and willful negligence in causing the injury, and in others with mere negligence. The plea was the general issue and the trial by a jury, the verdict being for $15,000, one-half of which X was voluntarily remitted by the plaintiff and judgment entered for $7500.
At the close of plaintiff’s evidence, and again at the close of all the evidence, the defendant requested the court, in writing, to instruct the jury to find for it, both of which requests were refused. In the Appellate Court several errors were assigned upon the record, all of which were overruled.
Upon this appeal but a single question is presented for our decision, and that is, whether or not the trial court erred in refusing to give the peremptory instruction to find for the defendant. The correctness of the ruling of the court in that regard of course depends upon whether or not there was any evidence introduced on behalf of the plaintiff, which, with all its legal inferences, fairly tended to establish the plaintiff’s cause of action; and it is conceded that there could be no right of recoyery except upon proof that the alleged injury was caused by a wanton and reckless disregard of duty on the part of the employees of the defendant company,—that is, wanton and willful negligence.
The cause of action is stated in the declaration substantially as follows: That defendant owned and was operating its railroad, running north and south along the shore of Lake Michigan, in the city of Chicago, embracing a number of tracks, on which many trains were running both day and night; that' Twenty-fifth street was a public highway running east and west and open to travel as far east as the tracks of the defendant, but that there was no public highway across the tracks where a person could pass from the city to the lake shore, and that the only way in which the public could reach the lake shore was by crossing such tracks on a line due east of Twenty-fifth street; that a great number of people, both daytime and evening, have been in the habit of crossing such tracks on a line east of Twenty-fifth street in order to go to and return from the lake shore, which use of the tracks was well known to and not objected to by the defendant; that section 2459 of article 51 of the ordinances of the city of Chicago provides that every locomotive engine, railroad car or train of cars running in the night time on any railroad track in said city shall have and keep a bright and conspicuous light on the forward end of such engine, car or train of cars, and if such engine or train shall be backing it shall have a conspicuous light on the rear car or engine; that another ordinance of” the city provided that the bell of each locomotive engine should be rung continually while running in said city, except at certain places, (not claimed to be where this injury occurred,) and that it was the duty of the defendant, on account of said ordinances, while operating its trains, to maintain such light for persons who might be crossing the tracks at such point and to ring a bell as required, but that, disregarding such duties, and while backing a train of cars along such tracks in the evening, after dark, the defendant willfully, wantonly, recklessly and negligently failed to keep such brilliant and conspicuous light on the forward end of such train and failed to ring said bell, and as a result thereof the plaintiff, who was a minor of the age of fourteen years, while crossing the tracks on a line due east of Twenty-fifth street, coming from the lake shore, between eight and nine o’clock in the evening, after dark, and while he was in the exercise of ordinary care and caution, was knocked down and injured by one Of defendant’s trains, etc.
There is no dispute in the evidence, as there could not be under this declaration, that the place of the injury was upon thp defendant’s right of way and not on a public street. The evidence shows that west of the railroad right of way, across the foot of Twenty-fifth street, and extending north and south, there was a stone wall separating the defendant’s yards from the public streets of the city. There is no controversy as to the fact that in the summer season, during warm weather, a greater or less number of persons were in the habit, and had been for several years, of crossing the defendant’s grounds from the foot of Twenty-fifth street due east to the lake for purposes of bathing, fishing, etc., and that this fact was known to the defendant and to the employees operating the train at the time of the accident. On the evening in question the plaintiff, with other boys, had gone to the lake shore, crossing the stone wall at Twenty-fifth street and the right of way of defendant, for the purpose of swimming in the lake. He attempted to return by the same route about nine o’clock at night, and when on one of the tracks of the defendant he was struck by a flat car which was being backed northward. The evidence was conflicting as to the speed at which the car was moving, and also whether the ordinances set out in the declaration, or either of them, were being observed; but the evidence tended to show that the speed of the backing train was some seven or eight miles an hour, and that no lights were displayed upon the rear ciar, or bell rung or other warning given. There was no evidence to the effect, nor is it claimed, that any of the employees of the defendant in charge of the train saw or had actual knowledge of the fact that the boy was on the track or right of way. There is no evidence tending to show that the place at which the injury occurred was other than strictly the private grounds, track and right of way of the defendant,—that is, there was no evidence tending to show that the place was in use as a public street or that it was open to the public. In other words, it is not denied that the plaintiff was, at the time he received his injury, a trespasser upon the track of the defendant. But plaintiff seems to have rested his case npon the theory alleged in his declaration, that the fact that numerous persons were in the habit' of crossing the defendant’s tracks at this place, which was known to its servants operating the train, together with the fact that no lights were displayed and no bell rung, tends to prove wanton and willful negligence on the part of those employees.
It is a general rule, that in order to maintain an action for injury to person or property by reason of negligence or want of due care there must be shown to exist some obligation or duty towards the plaintiff which the defendant has left undischarged or unfulfilled. This court is committed to the doctrine that a railroad company, in the operation of its trains, owes no duty to a trespasser upon its right of way or tracks except that it will not wantonly or willfully inflict injury upon him, and we have frequently held that the mere fact thfit signals required by statutes and ordinances are not given, even though those operating its trains may have knowledge of the fact that persons have been in the habit of crossing its tracks or walking upon them at places other than public crossings or public places, will not amount to proof of willful and wanton disregard of duty toward such trespassers. We said in Illinois Central Railroad Co. v. Godfrey,
It is true that some courts have held that where a railroad company has for a considerable length of time permitted the public to cross its tracks at given points without objection, it owes the duty of reasonable care toward those so using the crossing. (Taylor v. Delaware and Hudson Canal Co. 113 Pa. St. 162; Barry v. New York Central Railroad Co.
There is a line of decisions by this court holding, in effect, that even though a party may be upon the defendant’s tracks or right of way without an absolute right to do so, yet wheré the place “has been openly used jointly by the railroads and the public,” and where, from the evidence, the ownership of the place is left in doubt, as in the case of Chicago and Alton Railroad Co. v. O'Neil,
On the decisions first above cited, we are of the opinion that there was no evidence before the jury proving or tending to prove that the defendant was guilty of gross negligence toward the plaintiff, and that the trial court erred in refusing the peremptory instruction to find for the defendant.
The judgments of the circuit and Appellate Courts will be reversed and the cause will be remanded to the circuit court, with directions to proceed in accordance with the views herein expressed.
Reversed and remanded.