McAllister, P. J.
We have examined the evidence in this case with much care, and find that upon all the essentials of a recovery it was closely conflicting, and left in such doubt that a verdict for the defendant would not have been subject to have been set aside as unsupported by the evidence. It is the well established rule of the Supreme Court in such a case, that unless each instruction to the jury given on behalf of the plaintiff, if the successful party, stated the law with accuracy and was free from all error calculated to mislead the jury, the judgment must be reversed and the cause sent back for a new trial. C. & A. R. R. Co. v. Murray, 62 Ill. 326; Volk v. Roche, 70 Ill. 297; T., W. & W. R’y Co. v. Moore, 77 Ill. 217; Cushman v. Cogswell, 86 Ill. 62; T., W. & W. R. R. Co. v. Grable, 88 Ill. 441; American Ins. Co. v. Crawford, 89 Ill. 62; Wabash R’y Co. v. Henks, 91 Ill. 406; Ruff v. Jarrett, 94 Ill. 475 ; Stratton v. Cent. City H. R’y Co., 95 Ill. 25; Steinmeyer v. People, 95 Ill. 383; Swan v. People, 98 Ill. 610.
The first instruction given for the plaintiff and set out in our statement of the case was inaccurate and calculated to mislead the jury. 1. It contains no hypothesis in any plain, intelligible language that the injury was received in consequence of the excessive rate of speed at which the train was running. 2. It submitted to the jury a question of law, viz., the construction of the ordinance. 3. It improperly assumed that the defendant was guilty of gross negligence — a point in dispute upon the trial.
The seventh instruction directed the jury that if a railroad company has created extra danger it is bound to use extra precautions, and the precautions to be adopted must be adequate to insure against such danger the safety of every passenger who exercises ordinary and reasonable care. This instruction was framed so as to be presented in an abstract form. But it must have been understood by counsel for the plaintiff that the jury would never suppose that the court was directing them concerning any other case than that on trial. So. that the jury might naturally conclude from the language employed, that the court was of opinion that the defendant had created an extra danger; that the relation of carrier and passenger existed between the defendant and plaintiff, and that the latter was in the exercise of ordinary care at the time of the injury. It seldom happens that so much fiction underlies so brief an instruction. We can find in the evidence contained in the record in this case, no proof that the defendant had created an extra danger, or of facts tending to show that the relation of carrier and passenger existed between the parties at the time in question, and if there had been such a relation, there is no law in this State that 'constituted the defendant an insurer of the safety of its passengers. By the common law, a common carrier is an insurer of the safety of goods but not of passengers. Then the last clause is an assumption that the plaintiff was in the exercise of ordinary care when the proof tended to show that he was not.
By the next instruction for plaintiff the jury were told that the rule that any person who goes upon a railroad track incautiously or without using all reasonable caution to escape injury, assumes the hazard, and if injury ensues, is without remedy, has no application to a case where, by the arrangement of the company, if such is proved by the evidence to be the fact, it is made necessary for passengers to use its tracks or roadbed in reaching its depot, in order to take its passenger trains. Now, that direction was calculated .to impress the jury with the idea that in this case it was not incumbent upon the plaintiff to exercise any degree of care for his personal safety, if by the situation and circumstances it was necessary for passengers to go upon defendant’s road-bed in reaching the depot. The evidence shows that the respective pathways on the north and south sides of the main tracks, between Western Avenue and the depot, were located upon the outer edge of the foundation upon which the tracks were laid, and might, therefore, be considered as being in a certain sense a part of the road-bed, but that such pathways were in a passably good condition, and so situated as respected the tracks, as to be entirely safe for pedestrians to travel upon. And it appears that the plaintiff, although familiar with the locality, elected not to take either of said ways outside the tracks, but to go upon the space between them, which exposed him to danger and the misfortune which -overtook him. Upon that point the defendant’s counsel asked the court to instruct the jury, that the plaintiff was bound to know that the space between the defendant’s north and south main tracks was a place of danger and that he was bound, while walking between said tracks, to use a degree of care commensurate with the danger, and that it was his duty to use his senses both of sight and hearing, to learn of the approach of any train on said tracks.
But the court refused to so instruct, and the same propositions were not embodied in any instruction that was given. In view of the theory of plaintiff’s right of recovery, under which his case was submitted to the jury by the instructions on his behalf, the defendant was clearly entitled, under the law as settled in this and most of the other States, to have that instruction given, and it was error to refuse it. We are of opinion that for the errors pointed out, the judgment must be reversed. But counsel for the appellant urge that the evidence shows plaintiff to have been guilty of such a degree of contributory negligence that he is precluded from a recovery, wherefore the case should not be remanded. The evidence tends to support the theory that, although the plaintiff was negligent in exposing himself to danger, yet that his situation was observed by one of the servants of defendant upon the train which was run against him, in time for him to have caused the train to be stopped and thus to have avoided the injury by the exercise of ordinary care. The plaintiff was not a trespasser. He was upon defendant’s right of way for a purpose of business connected with the defendant, viz., to take passage upon one of its trains.
We are unable to say that the case, in that aspect, was such upon the evidence as to justify us either in affirming, notwithstanding the errors adverted to, or in refusing to remand for a new trial. There seem to he two classes of decisions applicable to such a case as this, where the party injured has been guilty of contributory negligence. One class holds that if he has been guilty of such negligence he can not recover without showing an intention, actual of constructive, on the part of the defendant to inflict the injury. Pennsylvania Co. v. Sinclair, 62 Ind. 301. In this State the doctrine is well settled, that in order to recover on the ground of mere negligence of the defendant as distinguished from a wilful tort or intentional wrong, the -party injured must be in the exercise of ordinary care. C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512. And yet it is intimated in that case that there might be a recovery although plaintiff’s intestate was guilty of negligence which exposed him to the risk of injury, if the servants of defendant having charge of the train after becoming aware of his danger could, by the exercise of ordinary care and diligence, have avoided the injury, and they failed to exercise such care and diligence.
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McAllister, P. J.
We have examined the evidence in this case with much care, and find that upon all the essentials of a recovery it was closely conflicting, and left in such doubt that a verdict for the defendant would not have been subject to have been set aside as unsupported by the evidence. It is the well established rule of the Supreme Court in such a case, that unless each instruction to the jury given on behalf of the plaintiff, if the successful party, stated the law with accuracy and was free from all error calculated to mislead the jury, the judgment must be reversed and the cause sent back for a new trial. C. & A. R. R. Co. v. Murray, 62 Ill. 326; Volk v. Roche, 70 Ill. 297; T., W. & W. R’y Co. v. Moore, 77 Ill. 217; Cushman v. Cogswell, 86 Ill. 62; T., W. & W. R. R. Co. v. Grable, 88 Ill. 441; American Ins. Co. v. Crawford, 89 Ill. 62; Wabash R’y Co. v. Henks, 91 Ill. 406; Ruff v. Jarrett, 94 Ill. 475 ; Stratton v. Cent. City H. R’y Co., 95 Ill. 25; Steinmeyer v. People, 95 Ill. 383; Swan v. People, 98 Ill. 610.
The first instruction given for the plaintiff and set out in our statement of the case was inaccurate and calculated to mislead the jury. 1. It contains no hypothesis in any plain, intelligible language that the injury was received in consequence of the excessive rate of speed at which the train was running. 2. It submitted to the jury a question of law, viz., the construction of the ordinance. 3. It improperly assumed that the defendant was guilty of gross negligence — a point in dispute upon the trial.
The seventh instruction directed the jury that if a railroad company has created extra danger it is bound to use extra precautions, and the precautions to be adopted must be adequate to insure against such danger the safety of every passenger who exercises ordinary and reasonable care. This instruction was framed so as to be presented in an abstract form. But it must have been understood by counsel for the plaintiff that the jury would never suppose that the court was directing them concerning any other case than that on trial. So. that the jury might naturally conclude from the language employed, that the court was of opinion that the defendant had created an extra danger; that the relation of carrier and passenger existed between the defendant and plaintiff, and that the latter was in the exercise of ordinary care at the time of the injury. It seldom happens that so much fiction underlies so brief an instruction. We can find in the evidence contained in the record in this case, no proof that the defendant had created an extra danger, or of facts tending to show that the relation of carrier and passenger existed between the parties at the time in question, and if there had been such a relation, there is no law in this State that 'constituted the defendant an insurer of the safety of its passengers. By the common law, a common carrier is an insurer of the safety of goods but not of passengers. Then the last clause is an assumption that the plaintiff was in the exercise of ordinary care when the proof tended to show that he was not.
By the next instruction for plaintiff the jury were told that the rule that any person who goes upon a railroad track incautiously or without using all reasonable caution to escape injury, assumes the hazard, and if injury ensues, is without remedy, has no application to a case where, by the arrangement of the company, if such is proved by the evidence to be the fact, it is made necessary for passengers to use its tracks or roadbed in reaching its depot, in order to take its passenger trains. Now, that direction was calculated .to impress the jury with the idea that in this case it was not incumbent upon the plaintiff to exercise any degree of care for his personal safety, if by the situation and circumstances it was necessary for passengers to go upon defendant’s road-bed in reaching the depot. The evidence shows that the respective pathways on the north and south sides of the main tracks, between Western Avenue and the depot, were located upon the outer edge of the foundation upon which the tracks were laid, and might, therefore, be considered as being in a certain sense a part of the road-bed, but that such pathways were in a passably good condition, and so situated as respected the tracks, as to be entirely safe for pedestrians to travel upon. And it appears that the plaintiff, although familiar with the locality, elected not to take either of said ways outside the tracks, but to go upon the space between them, which exposed him to danger and the misfortune which -overtook him. Upon that point the defendant’s counsel asked the court to instruct the jury, that the plaintiff was bound to know that the space between the defendant’s north and south main tracks was a place of danger and that he was bound, while walking between said tracks, to use a degree of care commensurate with the danger, and that it was his duty to use his senses both of sight and hearing, to learn of the approach of any train on said tracks.
But the court refused to so instruct, and the same propositions were not embodied in any instruction that was given. In view of the theory of plaintiff’s right of recovery, under which his case was submitted to the jury by the instructions on his behalf, the defendant was clearly entitled, under the law as settled in this and most of the other States, to have that instruction given, and it was error to refuse it. We are of opinion that for the errors pointed out, the judgment must be reversed. But counsel for the appellant urge that the evidence shows plaintiff to have been guilty of such a degree of contributory negligence that he is precluded from a recovery, wherefore the case should not be remanded. The evidence tends to support the theory that, although the plaintiff was negligent in exposing himself to danger, yet that his situation was observed by one of the servants of defendant upon the train which was run against him, in time for him to have caused the train to be stopped and thus to have avoided the injury by the exercise of ordinary care. The plaintiff was not a trespasser. He was upon defendant’s right of way for a purpose of business connected with the defendant, viz., to take passage upon one of its trains.
We are unable to say that the case, in that aspect, was such upon the evidence as to justify us either in affirming, notwithstanding the errors adverted to, or in refusing to remand for a new trial. There seem to he two classes of decisions applicable to such a case as this, where the party injured has been guilty of contributory negligence. One class holds that if he has been guilty of such negligence he can not recover without showing an intention, actual of constructive, on the part of the defendant to inflict the injury. Pennsylvania Co. v. Sinclair, 62 Ind. 301. In this State the doctrine is well settled, that in order to recover on the ground of mere negligence of the defendant as distinguished from a wilful tort or intentional wrong, the -party injured must be in the exercise of ordinary care. C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512. And yet it is intimated in that case that there might be a recovery although plaintiff’s intestate was guilty of negligence which exposed him to the risk of injury, if the servants of defendant having charge of the train after becoming aware of his danger could, by the exercise of ordinary care and diligence, have avoided the injury, and they failed to exercise such care and diligence. It may be that what was said should be understood as meaning that such neglect, under certain circumstances, would, in contemplation of law, be equivalent to intentional mischief, as was held in Kenyon v. N. Y. C. R. R. Co., 5 Hun, 479, where a child two years and a half old was seen on the track by the engineer in ample time to have stopped the engine, but was run over. The English doctrine is, that though the plaintiff may have been guilty of negligence and although that negligence may, in fact, have contributed to the accident, yet, if the defendant could, in the result, by the exercise of ordinary care and diligence, have avoided the mischief which happened, the plaintiff’s negligence will not excuse him. Cooley on Torts, 675; R. & D. R. R. Co. v. Anderson, 31 Gratt. 816, and authorities cited; L. S. & M. S. R. R. Co. v. Miller, 25 Mich. 277; Brown v. H. & St. J. R. R. Co., 50 Mo. 461; Whart. on Keg., Sec. 389 (a), and cases in notes.
We are inclined to the opinion that if the plaintiff was guilty of want of ordinary care which directly contributed to the injury, he will be prevented thereby from a recovery in the aspect of the case we are now considering, unless he shows that the act of running the train against him, was, under the circumstances, equivalent to intentional mischief on the part of defendant’s agents and servants in charge of the train.
The judgment of the court below will be reversed and the cause remanded.
Judgment reversed.