delivered tiie opinion oe the court.
In July, 1881, a young man by the name of John Howard was run over and killed by the cars of the' appellant, at a point near the town of Chicago, in the county of Marion. The appellee, Thomas Roberts, qualified as the administrator of his estate, and instituted the present action under the statute against the - railroad company, alleging that the death of his intestate was caused by the negligence of its employes in running the train. There are two counts in the petition ; the one for ordinary negligence, and the other for willful neglect. At the close of the evidence for the' plaintiff, the appellant moved for a peremptory instruction that was refused, and upon the final hearing a verdict and judgment was rendered against the appellant for $5,000.
This court has often held that, where the evidence conduced in any degree to establish the right of recovery, it is improper to instruct the jury to find for the defendant, and before a warrant is directed to be entered, it must appear, admitting the testimony to be' true, and the expenses paid, deducible from it, the party seeking to recover has failed to make out his case.
With this rule of practice long established and often recognized by this court, it is proper to determine in the first place the question arising on the motion for a
It appears from the evidence on the part of the' plaintiff that defendant’s road was about one-fourth or one-half mile south of where the appellee’s intestate was killed is very crooked, passing through several cuts and around curves, and that this part of the road the cars passed over before reaching the intestate. The-latter had been working as one of the section hands on defendant’s road prior to his death, and whether he was-at the time in the employment of the company does not. distinctly appear, nor is it important to inquire in view of the facts before us.
The intestate was boarding with Pat Kearns, who was the section boss, and lived about one and a half miles north of Chicago, and about one-half miles north of where intestate was. killed. The, intestate had been to a dance near Chicago, and in going to his boarding house at Kearns’, had gone on to the railroad and was-following its track to his destination instead of the-ordinary dirt road, and while on the company’s road, about eleven or twelve o’clock at night, was run over and killed.
The killing was on a long fill near a curve, with a down grade in the direction the engine was going at the-time of the accident, and away from any town or road crossing. The engine had become disabled in some
The error committed by the court below is embodied in instruction No. 1, given at the instance of the plaintiff, with reference to the rules óf the company, and for that reason a non suit was denied.
There is a rule of the company requiring “all special and irregular trains, whether running by telegraph •orders or not, must be run with great care, and the whistle sounded one half mile from all abrupt curves and obscure highway crossings, and when approaching •any stations.” This rule was read to the jury as evidence, against the objection of the appellant, and proof introduced conducing to show that no whistle was heard .at the curve, or at any other time until it reached • some station far beyond the point where the accident happened. This rule of the company, together with •other rules regulating the running of trains, is made part of the record, and while they have been adopted for the safety of the passengers and the proper running •of the trains, and to notify those who have the right to the use of any part of the road of the train’s approach, the rule in question with reference to blowing the whistle when approaching abrupt curves was intended to avoid obstructions, and not designed for the protec
This instruction should not have been given, but on. the facts of the case as presented by the plaintiff, a verdict for the defendant should have been entered. After the intestate had placed his life in peril, it was ■ the duty of those in charge of the train when made aware of his danger, to use all reasonable means at their command to save his life, but the engineer nor the fireman were required to know, or to anticipate the presence of any intelligent human being on that part of' the road at eleven o’clock at night. The right of a railroad company to use its track is exclusive of the public, except where they have the right to cross it, or where its use in a reckless or improper way must necessarily endanger the lives of those whose proximity to the road requires the exercise of care and caution by those running railroad trains. In passing through cities, towns, or places where persons congregate, greater care ■ and caution must be exercised than on that portion of the road where human beings have no right or license to travel. The speed in which the train is propelled in such a case can not be said to be willful neglect on the ■ part of the company, as to one who voluntarily places himself on the track, and is injured by reason of his-own carelessness.
To adjudge otherwise, would be to convert the track.
Rules and regulations adopted by the company for the protection of its passengers and trains do not apply to trespassers on its road, whose own wrongful and negligent conduct places them in danger, and the only obligation or duty on the part of the company or its employes in such a case is, when made aware of the danger, to avoid inflicting any injury, if, by the exercise of ordinary diligence, they can prevent it.
The judgment below is therefore reversed, and the cause remanded with directions to award a new trial and for proceedings consistent with this opinion.