The cause of the accident was an - open or misplaced switch... The switch was what is known as a Horton safety switch. It-could connect the side track with the main track only by raising a. lever weighted by an iron ball and held in that position. When released the weighted lever dropped to the ground and disconT nected the side track from the main track. When not used to-move cars upon the side track it was kept locked with a padlock. A standard was connected with the switch provided with elevated, targets which worked automatically and indicated to approaching-trains the condition of the switch. If open a red target showed by *159day and a red light by night. If disconnected a white target was shown in the daytime and a white light in the night time. The accident occurred at eleven o’clock on Sunday night. On examination of the switch immediately after the accident the lever of the switch was found to be raised and fastened in that position with a portion of fence board and an iron bar. The lock was found to have been broken. The target light was out and the wick turned down into the oil. The accident did not disturb the switching apparatus, the standard or the target light. These facts are supported by the undisputed testimony on the trial, except a single witness, Doctor Matthews, who says in substance that he had the impression that he saw the light burning after the accident, but “ I don’t know.” It was proven that all trainmen carried keys which unlocked the padlock which secured the switch lever. It was also proven that the switch had not been used to run cars upon the side track at any time after Saturday night prior to the accident, which occurred on Sunday night, and that, a milk train moved over the main track going south (in the same direction the express train was going) at six o’clock Sunday morning. The station agent, Wright, who was equal owner with plaintiff of the storehouse and contents, testified that the freight cars on the side track at the time of the accident were placed there Saturday night; he saw them there Sunday. It would, therefore, seem to have been conclusively established that no trainmen in their discharge of their duties had negligently left the switch in the condition in which it was found. Uor is there any proof that trainmen ever before had kept the switch open by propping up the lever in any manner, or had ever before broken the padlock or turned down the target light. It was also shown by witness Wright, whose duty it was to clean and light the target lamp on this switch, that the light was burning at nine o’clock p. m., two hours before the accident, showing the switch to be closed and in proper condition for the safety of trains moving south on the main track. The only reasonable conclusion from this testimony is that the switch had been operated purposely, and permanently connected the siding with the main track and the light extinguished, between nine and eleven o’clock p. >l, by some one with a criminal intent to derail the next south-bound train, and the company was in no way responsible for this act of displacement. It was, therefore, *160error on the part of the learned trial court to submit to the jury, over the objection and exception of defendant, that they might find that the displacement was the result of the act of some trainmen, for which defendant' might be held liable. Station Agent "Wright had been in charge of this station for many years, and is also interested with plaintiff in the action. He testified: “ I never thought there Was any necessity for émploying a switchman for the sole purpose-of taking care of that switch,” and the learned court properly charged the jury “ that it was unreasonable to expect that some man would stay there on the part of the company and watch -and' care for this switch.”
There is no evidence whatever in the case from which the jury had a right to conclude that the engineer was negligent in running his train. The alleged negligence of defendant is, therefore, narrowed down to-the single proposition, was it, so far as plaintiff and Wright are concerned, actionable negligence on the part of the company to continue to, maintain, after the permission was given to build the storehouse, the same condition of things as were before maintained, that is, the water tank and the switch partially hidden thereby ? It seems to me the statement, of the proposition raises no doubt whatever. The defendant owed no duty to the plaintiff and Wright' to remove the water tank oi- to make the targets upon the switch less obscure. The situation of both water tank and switch were well known to both Wright and plaintiff when they obtained permission to erect a building on defendant’s premises. They obtained without pay a license or permission revocable on sixty days’ notice. There was no promise to .pay rent, and no promise express or implied to change the water tank or switch, or change the methods of using either or change defendant’s method of doing its business. The rule in such a case is that the person obtaining the permission must assume all the ordinary risks attached to the nature of the place and the business carried on. Even had plaintiff promised to pay a rental for the ground he was to occupy, he could not require defendant to change the location or management of the switch, or require defendant to employ a man to watch or attend it. It was, therefore, error on the part of the learned court to leave it to the jury to say whether in this respect defendant might not have failed in its duty to plaintiff and Wright.
*161So far as I am able to- discover the foregoing are the only propositions submitted to the jury. They are, however, by the charge not very clearly defined. It is impossible to say what the jury ■might have understood the learned court to mean in its final instruction in this language: “ So, gentlemen, you will take this case, and if you find from the evidence, applying it perfectly fairly, that this company was not negligent in the operation of its road, that they took such precaution as a prudent and careful man would have taken in the conduct of his business, why then, gentlemen, you need go no further; * * * if you find the reverse, that, the company was negligent in causing the accident, * * * then you assess the damages.” This portion of the charge was excepted to. That this instruction gave the whole field to the jury to speculate in and discover that according to their private notions the business had not - been conducted prudently, or in conformity with the jury’s idea as to how a railroad business should be conducted, is apparent. The danger of sending a jury to sea without a pilot or compass might be less if the learned court should instruct the jury to report, in writing, the precise negligent act or omission upon which they based their verdict. Then, if the court were unable to instruct them what must be found to sustain a verdict, the record would still show what they did find.
The exceptions to the charge and the requests to charge fairly raised the several propositions we have referred to, and the charge and disposition of the requests were a practical instruction to the jury that they had a right to speculate, and there was no legal limit to their inquiry and no legal standard by which they were to judge the defendant guilty or not guilty of a failure in its duty to this plaintiff.
Under such a presentation, the jury might well have come to the •conclusion that the defendant was negligent in not providing more men to extinguish fires when defendant’s locomotives overturned;
•or they might have concluded that a prudent conduct of a railroad business does not admit of unforeseen accidents, and that evéry accident, not traceable to the act of God, necessarily establishes negligence in business management. The error of leaving so wide •a discretion to a jury is too obvious for comment.
*162The judgment should be reversed, a new trial granted, with costs' to appellant to abide the event.
■ All concurred.
Judgment and order reversed on law and facts, and new trial granted, with costs to appellant to abide event.