Opinion op the Court,
Sample, «J.
Under the evidence in this case and the law as applicable thereto, there was no public crossing at the place alleged in both counts of the declaration. This claim is based wholly on the physical fact, so far as the . appellant is concerned, that it constructed steps at the east and west ends or sides of its freight house platform, which platform was elevated three or four feet from the level of the ground. The steps were essential to the use of the freight house by its employes and the public, with whom there it transacted business'. The steps connected with no street, sidewalk or public way. The fact alone that the public used such steps in going to and from the freight and passenger depot, or for convenience used them to shorten the distance in going to and fro between the different portions of the town, did not make them a part of a public crossing.
The fact that appellant had a station there, with freight and passenger depot buildings, was an invitation to that part of the public having dealings with it, to cross its tracks wherever necessary for the purpose of transacting such business; but this fact did not make its tracks public crossings, in any proper sense of that term. If so, then the appellant was in the wrong in allowing its cars, over which appellee had to climb, to stand upon such public crossing. Uo one would insist it did not have a perfect legal right to allow these cars to stand where appellee found them, and over which he climbed. That act is not alleged in the declaration nor claimed in the argument to have been negligent, or a violation of law, state or municipal. It would have had just as clear a legal right to have had other cars standing opposite, to the west, on the “ house ” track, as the place where appellee fell. Its right there, of the use and occupancy of that portion of the ground, was exclusive, not only as to the public generally, but to the appellee as. well. Therefore there could be no correlative rights of use as between appellee and appellant. Necessarily, then, at the time of the accident, the appellee having no business with the company, was on that track without legal right to its use, to the exclusion of the appellant, for a single moment of time. His relation, therefore, to the appellant at the time and. place of the injury, must have been that designated in Blanchard v. L. S. & M .Ry. Co., 126 Ill., at p. 422, and other cases there cited.
The case of I. C. R. R. Co. v. Hammer, 72 Ill. 347, is cited by appellee’s counsel as holding a contrary doctrine. The facts in that case are not stated so that the law there announced can be clearly applied to the facts in this case. In all that appears the person injured may have been at the place of the accident for the purpose of transacting business with the company, or where he had a right to be. "While It is held in that case that the person injured was not a passenger, yet the law is declared to be, “ notwithstanding this, he was required, being, as he was, in a known place of peril, to use a higher degree of care than if he had been in a place of supposed safety.” If his rights at the place of the accident were correlative with the company’s, though subordinate, as it is at public crossings, then, of course, the duty of care and watchfulness was, by the law, imposed on the company, and the doctrine of comparative negligence would apply.
This case, however, is cited with others in the case of C., B. & Q. R. R. Co. v. Olson, 12 Ill. App. p. 250, as sustaining the doctrine that it is negligence for a person to walk upon the track of a railroad, whether laid in the street, or upon the open field, and he who deliberately does so, will be presumed to assume the risk of the perils he may encounter.”
That law was quoted from the case of I. C. R. R. Co. v. Hall, 72 Ill. 225, decided at the same term as the Hammer case. In the latter case the proof was clear that the track had been in common use for pedestrians without complaint on the part of the company. The basis of the doctrine of the Hall case must be on the want of legal right to so use the track and not in the mere fact that the person injured is walking along rather than across the track.
The fact that many persons use a track, either in passing along or across it, with the knowledge of the railroad company, without legal right, may have an important bearing on the question as to the character of the act of a railroad company in the operation of its trains resulting in an injury in this, that such an act might be mere negligence without such knowledge, for which there could be no recovery, but with such knowledge the same act might be so grossly negligent as to evince wantonness, indicating an utter disregard for life. Care and negligence are relative terms, dependent largely as to degree upon known conditions. To run a train at a high rate of speed where it was known persons were so using the track, although without legal right, might be wanton, for which wantonness, resulting in an injury, there could be a recovery: L. S. & M. Ry. Co. v. Bodemer, 139 Ill. 596; while if run at the same rate of speed, without such conditions being known, and an accident to a person occurred, there would be no liability.
Having determined that there was no public crossing at the place where the accident happened and that the rights there of the respective parties were not correlative but exclusive on the part of the appellant, the question left for determination is: Did the act of the servants of appellant under the conditions there existing in kicking back the car on the “ house ” track, which it is alleged struck the appellee, exhibit such a degree of recklessness as to indicate an utter disregard of consequence, or an intentional wrong ?
It is said that “ gross negligence ” of itself, is not in law “ a designed and intentional mischief, although it may be cogent evidence of such fact.” J. S. E. Ry. Co. v. Southworth, 135 Ill. 255.
“ Gross negligence ” is not a term, which, grammatically at least, and apparently not in law, though frequently so applied, is the subject of comparison, as it would be absurd to say “ gross gross, grosser gross and grossest gross.” C. B. & Q. R. R. Co. v. Johnson, Adm’r, 103 Ill. 522.
And yet it is said, in the case of L. S. & M. A. Ry. Co. v. Bodemer, 139 Ill. 606, quoting from 2 Thompson on Negligence, 1264, Sec. 53: “What degree of negligence the law considers equivalent to a willful or wanton act is as hard to define as negligence itself, and in the nature of things, is so dependent on the particular circumstances of each case as not to be susceptible of a general statement.” It is defined by our Supreme Court in I. C. R. R. v. Godfrey, 71 Ill. 500, to be “ such gross negligence as evidences willfulness.” It is said in the Bodemer case, supra, to mean “ such a gross want of care and regard for the rights of others as to justify the presumption of willfulness or wantonness. It is such gross negligence as to imply a disregard of consequences, or a willingness to inflict injury.”
“ Contributory negligence, such as that of a trespasser upon a railroad track, can not be relied on as a defense, in any case where the action of the defendant is wanton, willful or reckless in the premises, and injury ensues as a result.” Bodemer case, supra, 607.
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Opinion op the Court,
Sample, «J.
Under the evidence in this case and the law as applicable thereto, there was no public crossing at the place alleged in both counts of the declaration. This claim is based wholly on the physical fact, so far as the . appellant is concerned, that it constructed steps at the east and west ends or sides of its freight house platform, which platform was elevated three or four feet from the level of the ground. The steps were essential to the use of the freight house by its employes and the public, with whom there it transacted business'. The steps connected with no street, sidewalk or public way. The fact alone that the public used such steps in going to and from the freight and passenger depot, or for convenience used them to shorten the distance in going to and fro between the different portions of the town, did not make them a part of a public crossing.
The fact that appellant had a station there, with freight and passenger depot buildings, was an invitation to that part of the public having dealings with it, to cross its tracks wherever necessary for the purpose of transacting such business; but this fact did not make its tracks public crossings, in any proper sense of that term. If so, then the appellant was in the wrong in allowing its cars, over which appellee had to climb, to stand upon such public crossing. Uo one would insist it did not have a perfect legal right to allow these cars to stand where appellee found them, and over which he climbed. That act is not alleged in the declaration nor claimed in the argument to have been negligent, or a violation of law, state or municipal. It would have had just as clear a legal right to have had other cars standing opposite, to the west, on the “ house ” track, as the place where appellee fell. Its right there, of the use and occupancy of that portion of the ground, was exclusive, not only as to the public generally, but to the appellee as. well. Therefore there could be no correlative rights of use as between appellee and appellant. Necessarily, then, at the time of the accident, the appellee having no business with the company, was on that track without legal right to its use, to the exclusion of the appellant, for a single moment of time. His relation, therefore, to the appellant at the time and. place of the injury, must have been that designated in Blanchard v. L. S. & M .Ry. Co., 126 Ill., at p. 422, and other cases there cited.
The case of I. C. R. R. Co. v. Hammer, 72 Ill. 347, is cited by appellee’s counsel as holding a contrary doctrine. The facts in that case are not stated so that the law there announced can be clearly applied to the facts in this case. In all that appears the person injured may have been at the place of the accident for the purpose of transacting business with the company, or where he had a right to be. "While It is held in that case that the person injured was not a passenger, yet the law is declared to be, “ notwithstanding this, he was required, being, as he was, in a known place of peril, to use a higher degree of care than if he had been in a place of supposed safety.” If his rights at the place of the accident were correlative with the company’s, though subordinate, as it is at public crossings, then, of course, the duty of care and watchfulness was, by the law, imposed on the company, and the doctrine of comparative negligence would apply.
This case, however, is cited with others in the case of C., B. & Q. R. R. Co. v. Olson, 12 Ill. App. p. 250, as sustaining the doctrine that it is negligence for a person to walk upon the track of a railroad, whether laid in the street, or upon the open field, and he who deliberately does so, will be presumed to assume the risk of the perils he may encounter.”
That law was quoted from the case of I. C. R. R. Co. v. Hall, 72 Ill. 225, decided at the same term as the Hammer case. In the latter case the proof was clear that the track had been in common use for pedestrians without complaint on the part of the company. The basis of the doctrine of the Hall case must be on the want of legal right to so use the track and not in the mere fact that the person injured is walking along rather than across the track.
The fact that many persons use a track, either in passing along or across it, with the knowledge of the railroad company, without legal right, may have an important bearing on the question as to the character of the act of a railroad company in the operation of its trains resulting in an injury in this, that such an act might be mere negligence without such knowledge, for which there could be no recovery, but with such knowledge the same act might be so grossly negligent as to evince wantonness, indicating an utter disregard for life. Care and negligence are relative terms, dependent largely as to degree upon known conditions. To run a train at a high rate of speed where it was known persons were so using the track, although without legal right, might be wanton, for which wantonness, resulting in an injury, there could be a recovery: L. S. & M. Ry. Co. v. Bodemer, 139 Ill. 596; while if run at the same rate of speed, without such conditions being known, and an accident to a person occurred, there would be no liability.
Having determined that there was no public crossing at the place where the accident happened and that the rights there of the respective parties were not correlative but exclusive on the part of the appellant, the question left for determination is: Did the act of the servants of appellant under the conditions there existing in kicking back the car on the “ house ” track, which it is alleged struck the appellee, exhibit such a degree of recklessness as to indicate an utter disregard of consequence, or an intentional wrong ?
It is said that “ gross negligence ” of itself, is not in law “ a designed and intentional mischief, although it may be cogent evidence of such fact.” J. S. E. Ry. Co. v. Southworth, 135 Ill. 255.
“ Gross negligence ” is not a term, which, grammatically at least, and apparently not in law, though frequently so applied, is the subject of comparison, as it would be absurd to say “ gross gross, grosser gross and grossest gross.” C. B. & Q. R. R. Co. v. Johnson, Adm’r, 103 Ill. 522.
And yet it is said, in the case of L. S. & M. A. Ry. Co. v. Bodemer, 139 Ill. 606, quoting from 2 Thompson on Negligence, 1264, Sec. 53: “What degree of negligence the law considers equivalent to a willful or wanton act is as hard to define as negligence itself, and in the nature of things, is so dependent on the particular circumstances of each case as not to be susceptible of a general statement.” It is defined by our Supreme Court in I. C. R. R. v. Godfrey, 71 Ill. 500, to be “ such gross negligence as evidences willfulness.” It is said in the Bodemer case, supra, to mean “ such a gross want of care and regard for the rights of others as to justify the presumption of willfulness or wantonness. It is such gross negligence as to imply a disregard of consequences, or a willingness to inflict injury.”
“ Contributory negligence, such as that of a trespasser upon a railroad track, can not be relied on as a defense, in any case where the action of the defendant is wanton, willful or reckless in the premises, and injury ensues as a result.” Bodemer case, supra, 607.
It is there further in substance said that the comparison of negligence, m such case, on the doctrine of contributory negligence, must he understood, when used in reference ’¿hereto, to apply to the care required, or the law of relation as to reciprocal duties, after a discovery by defendant of the danger in which the injured party stood, or to the recklessness and wantonness of the servants of the defendant m failing to make such discovery and avert the calamity.
Applying these rules of law to the facts in this case for the purpose of determining the question now under consideration, the servants of appellant were not primarily required to use care to discover the appellee at a place on the track where he had no legal right to b,e, unless they knew or had reasonable grounds to believe that he or some one would be there and in a situation or condition of peril; and unless they so knew, the appellant is not liable, unless the appellee was discovered by the servants of appellant to be at such place and in peril of injury and they thereafter did not use care—that is, make all reasonable efforts—to avoid injuring him.
There is no proof that appellant’s servants saw the appellee on or near the track. The proof is clear that a brakeman rode the car back to the place where it was to be left and he did not see appellee. The appellee declared no one was on the car, but how could he be expected to see a man on the car when he did not, as he says, see the car itself.
"Worthington declares he saw no one on the car, but there is no proof that he looked to see. There were no- circumstances calling his attention to that fact.
Others who testified on the subject for the appellee were some distance away and do not pretend to any knowledge on the subject that can be considered as of any weight as evidence. The brakeman who rode the car and the man in charge of the bills of freight testify positively on the subject. Besides, all the circumstances corroborate them. Even if no one rode on the car the facts do not make such a case of wantonness or recklessness as to indicate a disposition to willfully inflict an injury. The proof is uncontradicted that kicking the car on the side track was the customary way, which the appellee testified he well knew. A part of the train was standing on the, “ pass ” track, over which appellee climbed to reach the “ house ” track, where he was injured. ISToone would expect, and the train men had no reasonable grounds to believe, that a person would climb over the cars to reach that track, and thus place himself in a position of peril. Had he been seen on the coal car that was standing on the “ pass ” track, by the train men, they would have been under no obligation to have checked or stop the moving car. They would have had a legal right to have assumed that he was of ordinary intelligence and caution, and would not voluntarily and knowingly expose his body to danger. C., R. I. & P. R. R. Co. v. Austin, Adm’r, 69 Ill. 426; I. C. R. R. Co. v. Fulka, 9 Ill. App. 605.
This question of . recklessness must be considered with reference to the specific facts and conditions as they then existed. It is not necessary or even proper to consider what might have happened to some other person at some other place on the track, by operating the car as was done in this case. The question is, so far as this appellee is concerned, not that some one might have been attempting to cross the track from the west to the east, at a place where there were no cars standing on the “ pass track,” but could the trainmen reasonably anticipate that appellee or any other person would climb over the ears at that place for the purpose of crossing the track there. While there is proof that a good many people, as a matter of convenience, availed themselves of the steps of the freight house platform in passing to and fro, yet, there is no proof that they were in the habit of climbing over freight cars in order to do so. Conceding, then, that the moving of the car that is alleged to have struck appellee, by “ kicking ” it, was negligence, still it falls far short of that required to constitute wanton-mess on the part of the servants of appellant; unless their conduct was so reckless as to impart that character to the act, resulting in appellee’s injury, there could in no event be a recovery in this case. That was essential to be established to relieve him of the obligation of care for his own safety; for under the doctrine of comparative negligence, slight negligence on his part is not inconsistent with the observation of ordinary care, which, when such rule is invoked and made the basis of an action, must be ¡woven, in order to authorize a recovery. C. & A. R. R. Co. v. Gretzner, 46 Ill. 75-83; C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512.
In fact, the law of comparative negligence has no application, unless the person injured has used at least ordinary care. P. C. & St. L. Ry. Co. v. Goss, 13 Ill. App. 619.
From what has been heretofore said it is apparent that our conclusion is that the appellee did not exercise ordinary care for his own. safety.
There was a light hanging-near the public crossing, and two lights on the platform of the depot building, so that the moving car could have been seen some distance away. The appellee was in an elevated position on the coal car, with no obstruction to prevent him from seeing the car. He testifies that he knew that switching was done there by “kicking” the cars on the “house track” at all times, day and night, and that the engine was disconnected from the train, and was down by the switch ends at the south, evidently engaged in that work. Knowing these facts, which fully apprised him of the danger, he hazarded the attempt to cross the “house” track, which was known to him to be the switch track, and in doing so, jumped down from the coal car, which was standing on the “ pass ” track, and fell, but says, “ I was not down more than a second.” As he attempted to arise, he claims the ear struck him in the chest and knocked him down on his back.
By his own showing he must have jumped down from the coal car almost immediately in front of the moving car, although he could have seen the car and avoided the accident.
Where a person voluntarily and unnecessarily places himself in a position well known to be a place of danger, and is injured, there can he no recovery for even gross negligence on the part of the defendant, the act of the defendant not • being willful or wanton. Abend v. T. H. & I. R. R. Co., 111 Ill. 202.
Instructions number one, two and three, given for the appellee, were not in harmony with the views herein expressed, upon which we do not deem it necessary to comment further, for the reason that if we are correct, there can he no recovery in this case, and therefore the case is reversed and not remanded.
Binding of facts: That appellee attempted to cross the track of appellant at a place that was not a public or private crossing, without using ordinary care on his part, to> see an approaching car that was being at the time switched onto one of appellant’s tracks by “ kicking ” the same, anc! giving it momentum in that manner, which car struck the plaintiff and injured him; that said ear was at the time attended by a brakeman riding on top of the same, for the purpose of controlling and stopping it at the desired place on the switch track, and that the act of so operating such car, under the circumstances, was not so negligent as to manifest a reckless disregard of the rights or safety of the appellee.
The clerk will enter the foregoing in, and make the same a part of, the final order of the case.