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Chicago & Eastern Illinois R. R. Co. v. Thomas McKnight, Adm'r, etc.
Lacey, P. J. The appellant insists that the position of the appellee in being on the hand car was that of trespasser, but we are inclined to the opinion that the evidence warrants the belief that she was not a trespasser, but that she was there by its permission, and occupied the same position as the railroad section men who were on the hand car — that of persons riding on the hand car for their own accommodation, and on account of their own business, and not for any profit or business of the company.
These employes of the appellant who were on the hand car were not, at the time of the collision, in the line of their duty, as employes engaged in the business of the company, but were going on their own business the same as deceased. The deceased then would occupy the same position, and ivould be chargeable with her own negligence as well as the negligence of those in whose care she had intrusted herself.
It is claimed that the deceased was bound under the circumstances to use extraordinary care; but in accordance with the view we take of the case it will not be necessary to decide that point, for at least she was bound to use ordinary care, and is chargeable with the negligence of McDonald and Conners and Coffee, who had control of the hand car, and in whose care she was, and who were not at the time the servants of the appellant, engaged in the line of their employment.
The going upon the railroad track, in the hand car, in the night time, knowing full well that a construction train was liable to meet them at any time, without taking great precaution to avoid collision, was an act of negligence; but rushing on to the approaching train, after seeing the light on it, paying no heed to it, was an act of gross negligence, and would prohibit recovery.
To approach with their hand car after having seen the light on the approaching train, without taking any precaution to investigate what the light was, whether the train was approaching or receding, was a most reckless act under the circumstances. By halting they could have soon discovered that the train was approaching and not departing.
This, coupled with the fact, known to the parties, that ordinarily a person on a hand car can not hear the whistle or bell sounded on the approaching train, or the noise of its approach, should have made them still more cautious alter seeing this light. Coffee and McDonald saw this light, and on their judgment that it was on a retiring train, at the same time knowing it was impossible to tell whether the train was approaching or not, dashed on reckless of consequences to their destiny.
What reasonable man under such circumstances would have so acted? Alice Burling, Admx., v. Illinois Central Railroad Co., 85 Ill. 18, is very much in point in comparison of facts with this case, and there the Supreme Court held that the facts, if found in favor of appellant therein, would not support a verdict. In that case, as in this, it was a collision of an engine and train with a hand car, and in that case there was no head-light on the train, and there was no light on the hand car.
While the court held that it was a high degree of negligence to run a train without a head-light, yet it also held that the deceased in that case was so grossly negligent that a verdict in favor of his administrator would have been set aside. But in the case before us the light of the approaching train was actually seen, but no attention whatever paid to it; the meeting of trains in the case above cited was almost certainly to have been anticipated.
The statutory negligence claimed, that the bell was not rung or the whistle sounded eighty rods before reaching a crossing can not be set up by the appellees in this case. The deceased was not injured at the crossing, and does not come within the meaning of that statute. That statute was intended to protect persons in crossing, and has no reference to cases like this, where the injury occurred on the railroad track of the appellant.
The omission to comply with the statute can not, in a case like this, be set up as ground of recovery, W., S. L. & P. Ry. Co. v. Neikirk, 15 Bradwell, 172; Same v. Same, 13 Bradwell, 387. It is not necessary to pass on the instructions as the judgment must be reversed on the facts. The judgment is therefore reversed. Judgment reversed.