Opinion,
Mr. Justice Green :
The seventh, eighth, and eleventh points of the defendant were refused by the learned court below, because, as the court said, they required the court to affirm or negative alleged facts as having been proven. This was an altogether mistaken view of the points. They did not ask the court to make any direction as to the facts, but they did ask the court to instruct the jury as to the law, if they found the facts to be as stated in the points. The points were purely hypothetical, in the statement of the facts mentioned, and there was ample testimony in the case to justify their presentation, and to ask the instruction of the court to the jury upon their legal effect, if they were found to be as stated. The court gave no such instruction, nor any instruction whatever, upon the effect of the facts, if found by the jury. This, of course, was plain error. If there had been no testimony in the cause to sustain the facts suggested in the points, the court might have refused to submit them for want of evidence; but that was not done, and could not have been done without the gravest error. The learned court simplj directed the jury to determine what the facts were, without giving them any instruction as to what was their duty, if they found them to be as stated in the points.
Upon an examination of the testimony, we find that the deceased was put off the cars at a point somewhat beyond a large breaker, at a colliery which was in active operation and upon which a considerable number of men and boys were constantly at work. There is some discrepancy in the testimony as to the [627]*627particular spot at which, the deceased was put off the train. All the witnesses on both sides practically agree that it was between the breaker and a point a short distance below the bridge No. 10. It was abundantly testified and not contradicted, that there was a retaining-wall about six to eight feet high in front of the breaker, and extending beyond it, on which a switch track was laid connecting the main track of the railroad with the breaker. The end of this switch track where it joined the main road was a short distance below the bridge called No. 10 on the map and in the testimony, and very close to an old road which crossed the railroad and connected with the old public road leading from Carbondale to Forest City, passing in front of the breaker. This old road was not in much use at the time of the accident, but was used to a slight extent for hauling, and to a greater extent by foot-passengers desiring to reach the public road from the railroad. One of the owners of the colliery, W. G. Parke, said there was no difficulty in a man passing from the railroad up this old road in the direction of Forest City, and never had been. It connects with the public road from the breaker to Forest City at a very short distance from the railroad.
As to the old public road itself, it was most thoroughly located and identified by numerous witnesses, who had traveled over it, and it was surveyed by a civil engineer, Walter Frick, a few weeks after the accident. His field-notes were produced in court, and from these and his work on the ground he made a map showing the entire locality, including the breaker, a number of buildings along the road, the road itself, the railroad, the river, the bridges, the cuts and fills along the track, the retaining wall, and the switch. This draft or map was fully identified and given in evidence on the trial. We have discovered no evidence which in any degree justifies the assertion that it was “ thoroughly deceiving,” “ absolutely incorrect,” or “misleading,” as is alleged in the appellee’s argument. The testimony proving the existence and constant use of the old public road from the breaker to Forest City is simply overwhelming. There were a number of dwelling-houses along that road, which were served with meat by a butcher who traveled it constantly for that purpose ; all the teaming to and from the colliery was conducted over it; it was rough and [628]*628Stony, but entirely passable for teams and foot-passengers. The old road leading from the railroad to this public road, although it had been abandoned for general public use, was neither closed Tip, nor was it at all inaccessible to foot-passengers, and its locality was still visible on the ground. Besides this means of access to the public road, all the witnesses, both for the plaintiff and defendant, who spoke upon the subject, said that there was direct access to the breaker over the switch which connected it with the railroad, and there was no difficulty in reaching the breaker by that mode.
The point at which the deceased was put off was not exactly identified, but it was placed by the plaintiff’s witnesses very near to the junction of the switch with the main track, and also to the old road, which was a short distance below the bridge No. 10. A very slight search for an outlet to the breaker would have disclosed the switch, and an equally slight search would have discovered the old road. But the men did not make any such search. Thomas Jones was with the deceased, and went with him until Ham was struck at bridge No. 9; and he testified, on cross-examination, that “ we stayed and considered what to do, and we thought it was just about as near for us to go to Forest City as to go back,” and then they started on. They walked on the track of the railroad towards Forest City till they reached bridge No. 9, where Ham was struck by an approaching locomotive. At this point Jones said that it was about seven or eight feet from the bridge down to the water of the river, and that, though he fell that distance, he was not hurt, but Ham, being struck by the locomotive, was so injured that he died the next day. The plaintiff alleges that it was four thousand feet from the point where Ham was ejected to the place where he was struck, and the defendant says it was about a mile; but, whether it was the one distance or the other, it is evident that the presence of the men on the track at so remote a point cannot be justified, except upon clear proof of a most imperious necessity. Of that kind of proof we can discover none in this case. A number of witnesses testified'that the houses and the public road could be seen from the railroad track at various points along the railroad. Even granting that the railroad was laid between a bank on the one side and the river on the other, the bank was of very moderate height, and the descent to the [629]*629river was quite inconsiderable. It was not at all impossible to surmount the bank, or to descend to the river’s edge, where the width between the water and the foot of the railroad embankment varied from ten feet to one hundred feet, according to some of the testimony.
Hugh Brown, a witness for the plaintiff, who was present and saw Ham put off, testified in chief: “ Q. From below the bridge two or three rods, clear up to bridge No. 9, state to the jury whether there is any passable ground or way for one to travel outside of the track. What I mean is, what .is the shape of the ground? A. It is quite uneven. Q. Is that between the bridges, beginning where he was put off? A. It is quite uneven ground, and bushy, and tree-tops, etc.....Q. On the right-hand side, what is in the way of a man going off from the track, and traveling there? A. Well, there is uneven ground between the railroad and the river, and some rocks and steep pitches between the railroad and the river. Q. Does the river run close to the track ? A. It varies from ten to twenty and one hundred feet. Sometimes it is nearer the railroad than others. Q. How was it on the other side, -within five or six rods of that bridge ? A.
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Opinion,
Mr. Justice Green :
The seventh, eighth, and eleventh points of the defendant were refused by the learned court below, because, as the court said, they required the court to affirm or negative alleged facts as having been proven. This was an altogether mistaken view of the points. They did not ask the court to make any direction as to the facts, but they did ask the court to instruct the jury as to the law, if they found the facts to be as stated in the points. The points were purely hypothetical, in the statement of the facts mentioned, and there was ample testimony in the case to justify their presentation, and to ask the instruction of the court to the jury upon their legal effect, if they were found to be as stated. The court gave no such instruction, nor any instruction whatever, upon the effect of the facts, if found by the jury. This, of course, was plain error. If there had been no testimony in the cause to sustain the facts suggested in the points, the court might have refused to submit them for want of evidence; but that was not done, and could not have been done without the gravest error. The learned court simplj directed the jury to determine what the facts were, without giving them any instruction as to what was their duty, if they found them to be as stated in the points.
Upon an examination of the testimony, we find that the deceased was put off the cars at a point somewhat beyond a large breaker, at a colliery which was in active operation and upon which a considerable number of men and boys were constantly at work. There is some discrepancy in the testimony as to the [627]*627particular spot at which, the deceased was put off the train. All the witnesses on both sides practically agree that it was between the breaker and a point a short distance below the bridge No. 10. It was abundantly testified and not contradicted, that there was a retaining-wall about six to eight feet high in front of the breaker, and extending beyond it, on which a switch track was laid connecting the main track of the railroad with the breaker. The end of this switch track where it joined the main road was a short distance below the bridge called No. 10 on the map and in the testimony, and very close to an old road which crossed the railroad and connected with the old public road leading from Carbondale to Forest City, passing in front of the breaker. This old road was not in much use at the time of the accident, but was used to a slight extent for hauling, and to a greater extent by foot-passengers desiring to reach the public road from the railroad. One of the owners of the colliery, W. G. Parke, said there was no difficulty in a man passing from the railroad up this old road in the direction of Forest City, and never had been. It connects with the public road from the breaker to Forest City at a very short distance from the railroad.
As to the old public road itself, it was most thoroughly located and identified by numerous witnesses, who had traveled over it, and it was surveyed by a civil engineer, Walter Frick, a few weeks after the accident. His field-notes were produced in court, and from these and his work on the ground he made a map showing the entire locality, including the breaker, a number of buildings along the road, the road itself, the railroad, the river, the bridges, the cuts and fills along the track, the retaining wall, and the switch. This draft or map was fully identified and given in evidence on the trial. We have discovered no evidence which in any degree justifies the assertion that it was “ thoroughly deceiving,” “ absolutely incorrect,” or “misleading,” as is alleged in the appellee’s argument. The testimony proving the existence and constant use of the old public road from the breaker to Forest City is simply overwhelming. There were a number of dwelling-houses along that road, which were served with meat by a butcher who traveled it constantly for that purpose ; all the teaming to and from the colliery was conducted over it; it was rough and [628]*628Stony, but entirely passable for teams and foot-passengers. The old road leading from the railroad to this public road, although it had been abandoned for general public use, was neither closed Tip, nor was it at all inaccessible to foot-passengers, and its locality was still visible on the ground. Besides this means of access to the public road, all the witnesses, both for the plaintiff and defendant, who spoke upon the subject, said that there was direct access to the breaker over the switch which connected it with the railroad, and there was no difficulty in reaching the breaker by that mode.
The point at which the deceased was put off was not exactly identified, but it was placed by the plaintiff’s witnesses very near to the junction of the switch with the main track, and also to the old road, which was a short distance below the bridge No. 10. A very slight search for an outlet to the breaker would have disclosed the switch, and an equally slight search would have discovered the old road. But the men did not make any such search. Thomas Jones was with the deceased, and went with him until Ham was struck at bridge No. 9; and he testified, on cross-examination, that “ we stayed and considered what to do, and we thought it was just about as near for us to go to Forest City as to go back,” and then they started on. They walked on the track of the railroad towards Forest City till they reached bridge No. 9, where Ham was struck by an approaching locomotive. At this point Jones said that it was about seven or eight feet from the bridge down to the water of the river, and that, though he fell that distance, he was not hurt, but Ham, being struck by the locomotive, was so injured that he died the next day. The plaintiff alleges that it was four thousand feet from the point where Ham was ejected to the place where he was struck, and the defendant says it was about a mile; but, whether it was the one distance or the other, it is evident that the presence of the men on the track at so remote a point cannot be justified, except upon clear proof of a most imperious necessity. Of that kind of proof we can discover none in this case. A number of witnesses testified'that the houses and the public road could be seen from the railroad track at various points along the railroad. Even granting that the railroad was laid between a bank on the one side and the river on the other, the bank was of very moderate height, and the descent to the [629]*629river was quite inconsiderable. It was not at all impossible to surmount the bank, or to descend to the river’s edge, where the width between the water and the foot of the railroad embankment varied from ten feet to one hundred feet, according to some of the testimony.
Hugh Brown, a witness for the plaintiff, who was present and saw Ham put off, testified in chief: “ Q. From below the bridge two or three rods, clear up to bridge No. 9, state to the jury whether there is any passable ground or way for one to travel outside of the track. What I mean is, what .is the shape of the ground? A. It is quite uneven. Q. Is that between the bridges, beginning where he was put off? A. It is quite uneven ground, and bushy, and tree-tops, etc.....Q. On the right-hand side, what is in the way of a man going off from the track, and traveling there? A. Well, there is uneven ground between the railroad and the river, and some rocks and steep pitches between the railroad and the river. Q. Does the river run close to the track ? A. It varies from ten to twenty and one hundred feet. Sometimes it is nearer the railroad than others. Q. How was it on the other side, -within five or six rods of that bridge ? A. Why, this railroad was made along a side hill. Any of the gentlemen here can imagine what kind of a side-cut a railroad will leave after it is made along a side hill. Sometimes there is not much of a cut at all, and then again there is quite a heavy bank. Q. How is it below the bridge, there ? A. There is a little ways of it, if I remember right, is quite fiat, and then there is a heavy side-cut near by that.” The same witness, on cross-examination, said he had, about eighteen months before he was examined, walked down from No. 8 bridge to below No. 10 bridge, looking for a logging party, and walked partly on the railroad track and partly along the creek. He said he did not cross No. 10 bridge, and he thought he did not cross No. 9 bridge. He came out on the track a short distance below No. 10 bridge. He was asked: “ Q. Did you follow the railroad track down between No. 9 and No. 10 bridge, coming down? A. No, sir; I kept in where I expected to find this party that I was looking for, in the lumber woods. I knew I couldn’t find him if I went in on the railroad..... Q. How close to No. 10 bridge did you come on to the track ? A. Why, somewhere about, a quarter of a mile [630]*630below, I should think. Q. Was it above the head of the switch to that breaker? A. Yes, sir.” He further testified that, in coming down, he walked on the beach of the river or creek; that the water was low and he could walk on the beach, and that he kept pretty close to the river all the way down.
This was the plaintiff’s witness, and he was not contradicted by any one as to this subject. He proved that it was possible to walk all the way from below No. 10 bridge to above No. 9 bridge, without walking on the track, except for a part of the distance winch he did not state, nor did he say it was necessary to walk there at all. Now, this is the space over the whole of which Ham. and Jones walked on the track till they reached No. 9 bridge, where Ham was killed. In view of this testimony, it cannot' possibly be said that these persons were compelled to walk on the track. There was no proof that the river was high at that time, or that a person could not walk along it. It was rough and stony, doubtless, and perhaps some trees and brush would be met with, but there is no evidence that it was impassable. Walking on the track was more convenient, because it was unobstructed; but that is no justification for a continued trespass upon it for four or five thousand feet of its length. But, aside from all this, there was no proof that the parties could not have walked alongside the track in the space between the side of the track and the bank. As the burden of proof was upon the plaintiff to show that Ham and Jones were compelled to walk on the track, it was incumbent upon the plaintiff to show that they could not have walked outside the track in the space immediately next the cross-ties. On all railroads there is more or less of such space, except in crossing over trestles or bridges.
The plaintiff’s witness Brown, having testified in chief that there was a retaming-wall in front of the breaker eight or ten feet high, and that there was a switch track leading from the breaker to the main track, was asked, on cross-examination : “ Q. Don’t you know the fact that it slopes down to nothing, so that there is no wall at the upper end? A. Yes, sir. Q. There would be no difficulty in a man going right up along that wall from the track to the breaker? A. When he got to the end of the wall; no, sir. Q. How far above the end of the wall is the breaker ? A. I don’t know......Q. The switch [631]*631runs rigbt along this wall, doesn’t it, — right to the breaker? A. Yes, sir. Q. And this retaining-wall was to hold up this switch track ? A. Yes, sir. Q. And this switch track runs right into the main track, just above ? A. Yes, sir. Q. And there is no difficulty in following that switch up to the breaker? A. No; he can go up the main line until he gets to the switch.” Other testimony to the same effect was given by the defendant.
As to the small piece of road marked “ Old Road ” on the map, and extending from the railroad track to the road leading past the breaker to Forest City, there was quite a good deal of testimony, only a small part of which needs reference. George T. Fletcher, a butcher who had traveled a great deal over the old public road from Carbondale past the breaker to Forest City, and had served meat to the persons living in the houses along that road, on both sides of the breaker, was asked: “ Q. Do you know of a road crossing from No. 8 across the railroad to No. 4? A. 1 know there is an old road here that goes down as far as the railroad, but how much farther it goes I don’t know, for I never traveled along that road, but I know it is there ; and also there is a footpath for man or beast to go down this way, but I don’t see it on the map. It is from No. 8 to the bridge. I have walked down there dozens and dozens of times to the bridge, and walked across the bridge to another little shanty, and carried meat.” John B. Golden, a witness, for the defence, said: “ I have traveled from the railroad there up this road from No. 4 to No. 1, and up to Hollenbach’s switch, and there is a road — Mr. Hollenbach and I made a road — out into this old road, and that road comes to Forest City, or to Carbondale, I should say.....From No. 4 I have traveled up here a number of times.” The surveyor, Frick, said: “Here is an old abandoned road marked ‘Old Road;’ that is abandoned, but, when I was surveying there, there were people hauling coal up this way, and going up into the main road. Q. Did you see that old road, and travel down as far as you have marked it on the map ? A. I did. Q. When ? A. The date of the survey..... Q. And you have put on the map an old road, as if it crossed the railroad ? A. It did..... Q. Did it extend beyond that railroad on this side? A. Yes, sir. Q. Did you go up to the end of it? [632]*632A. No, sir; I didn’t. I went farther than it is marked there; it extended down along the river, and I didn’t follow it all the way down then..... Q. At this point, what did you find upon the ground crossing the track; what did you find upon the ground where this is marked, ‘ Old Road ? ’ A. I found an old road-bed. The road is not traveled now because the culm dump from the breaker shuts it off. Q. State what you found there. A. I found this old road. It is not traveled very much now. It is grown up with grass, showing that it is not traveled much. But there is grading showing that this had been an old road.”
Now, the theory of the plaintiff was that Ham was put off at a point quite near No. 10 bridge, and that would be between this old road and the bridge. The theory of the defendant was that he was put off down near the breaker, and this was testified to by eight or nine witnesses. If that were the fact, Ham and Jones must necessarily have passed directly by both the end of the switch coming from the breaker to the main track, and the “ old road ” leading up to the old public road from the breaker to Forest City. By either of these modes, they.could very easily have reached the old public road. Jones testified that they looked for a road or path out from the railroad, but did not find any. But a number of witnesses testified that, standing in the road at the bridge or very near to it, the old public road was plainly visible for a considerable distance. Frick was asked: “Q. When you got to the upper end of that wall, standing at the upper end of that wall beyond it, could you see any road? A. Yes, sir. Q. You could? A. Yes, sir. Q. On the hill-side? A. Yes, sir. Q. How far up? A. You could trace the road from above the buildings all the way up. Q. I am asking you about standing on the track? A. Standing on the track at the upper end of the retaining-wall. Q. Now, let us go up several hundred rods farther. Suppose you begin within three or four rods, at that point in bridge No. 10, could you see the breaker? A. Yes, sir. Q. You could see the breaker, could you? A. Yes, sii\ Q. From within two or three rods? A. Yes, sir..... Q. Did you stand there to look at it ? A. I have quite frequently.....Q. From that bridge can you see the road? A. Yes, sir. Q. What road can you see? A. This road, [633]*633(illustrating.) Q. Standing upon that bridge? A. Yes, sir. Q. See that that is a road? A. Yes, sir.....Q. By standing in that bridge, you say any one can see it? A. Yes, sir; it is about fifteen feet above the level of the track, and, of course, they can see a defined road running there. Q. Did you try to see? A. Yes, sir; I noticed that road. Q. Standing on those tracks? A. Yes, sir. Q. You went there to see whether you could? A. Yes, sir.” Frick also testified that he had measured the whole distance from the breaker to Bridge No. 10, and it was fifteen hundred feet. The switch extends from the breaker towards the bridge for a large part of this distance to the point where it joins the main track, and beyond that is the “ old road ” crossing. But a small part of the fifteen hundred feet is left from the end of the switch to the bridge, so that a search of two or three minutes in that direction would have disclosed both the switch and the “ old road; ” or, if Frick’s testimony was correct, the old public road, slightly elevated above the track, would have been discovered by a mere look in that direction. The witness Golden testified that several of the houses along the road could be seen from above No. 4, and the road could be seen by a person standing on the track three rods from bridge No. 10. The witness Wallace said he knew the old public road, and at bridge No. 10 there was a wagon road up to it, and that the houses along the road could be seen from the bridge. The witness Fletcher was asked: “ Q. Is the road visible from the point between bridge No. 10 and station No. 4? Is that road visible from the track? A. Yes, sir; it is. There, at No. 8, it is perfectly visible, and you can see it as plain as can be.....Q. Did you ever stand down on that track where the switch begins, and look up to see if you could see the road-bed? A. I never was asked. Q. But did you do it? A. I have done it scores of times. . . . Q. When did you ever stand within two or three rods of the bridge, and look up to see if you could see the road-bed of the old track ? A. I can’t give you any dates, but I have done it dozens of times. I stood there, and looked up and saw my team, and could see the road exactly from there.” W. G. Parke testified to the same effect.
From this brief review of portions of the testimony, it is perfectly manifest that there was an abundance of evidence to [634]*634justify tbe hypothetical points of the defendant Nos. 7, 8, and 11, and the defendant was entitled to have a direct answer to these points.
It is equally certain that they should have been affirmed just as they were presented. For, it is not possible that, when a person is ejected from a train, he is at liberty to walk upon the track of the road for any considerable distance, or for any distance more than is absolutely necessary to enable him to reach' a position of safety. Ham was ejected in broad daylight, between three and four o’clock in the afternoon. A companion was with him, and they had every opportunity to search for a place of egress from the road. There were at least two such places close by where Ham was put off, according to the plaintiff’s theory, and immediately on the line of their course, according to the defendant’s theory. But the other proof in the case would not justify them in continuing on the track, because it does not establish a really impassable means of departure from the track. It is not at all necessary that there should be a public road in good traveling condition for men and teams, in order to excuse the- party from the duty of leaving the track. These men were on foot, and any means of egress from the track, which should be made use of by a person of ordinary prudence for that purpose, it was their clear legal duty to adopt, and a disregard of that duty would be contributory negligence on their part. It seems incredible that, in a distance of four thousand feet, there was no available means of departure from the track under the testimony as we find it in this case. The most serious obstacle seems to be no more than an embankment from ten to twenty feet in height, and that not continuously, and above that such obstructions as stumps, trees, stones, and some underbrush. These are very common conditions in the country, certainly not regarded as serious obstacles by hunters, lumbermen, fishermen, and many others. The fifth assignment of error is sustained.
The sixth assignment is also sustained. The seventeenth point of the defendant was based upon the hypothesis that, if Ham was put off at a place from which he could by ordinary prudence have discovered and gone upon a traveled road, his duty to leave the track would not have been excused by a condition of partial intoxication or the influence of Jones. This [635]*635is certainly sound in a legal sense, and should have been affirmed.
We think the defendant’s fourth point was entitled to an affirmance, for the reason that, although the defendant company may have been bound to carry the passenger on a ticket sold by another company, the conductor was entitled to have proof of that fact by seeing the ticket. But we cannot see any reason why the conductor would be justified in treating the passenger as a trespasser, if the evidence is believed that the full fare was tendered to him before the passenger was ejected. That testimony was denied by the defendant, but it was an open question for the jury, and in the general charge the learned court below correctly stated the law to the jury upon this subject. Technically, the first assignment must be sustained, as the point contained the ingredient of a refusal by Ham to pay the fare.
The second assignment is not sustained, because the plaintiff’s first point was strictly correct. The passenger would not be a trespasser, merely because he could not find his ticket, and his act of entering the car in the contingency stated in the point would be perfectly legitimate. It would only be by a refusal to pay his fare when he could not produce his ticket, that he would become liable to be treated as a trespasser.
The third and fourth assignments are not sustained. If an actual tender of fare was made before the train was stopped, the conductor could not refuse it, no matter who made the tender.
The seventh assignment is not sustained.
The judgment is reversed, and new venire awarded.