However our sympathies may be with the plaintiff below, the law must take its course. Whatever dispute there may be about the speed at which the train was running, there are other facts about which there is no dispute. Whether this be a regular road-crossing of the track or not, it is not controverted that the plaintiff approached the crossing from the west in such a position that he could see the train for a considerable distance if he had looked, and could have heard it for near half a mile, according to the testimony of his own witnesses, if he had possessed the faculty of hearing in an ordinary degree. Dr. Warner says, a person two hundred feet from the crossing could see down the track; and Mrs. Warner says, “Any person, of ordinary hearing, could! have heard the cars. I could have heard them if I had beea where I saw Mr. Buckner.” But he did not hear them. He> was, to a degree, deaf. He was driving a colt three or four-years old, which appears to have been fractious or timid. When he got on the track, the colt became frightened and ran up the track, or north on the track, from the approaching train, and was overtaken by it some distance north of the crossing; according to the testimony of all the witnesses, and as the engineer testifies, many yards from the crossing. Mrs. Warner says, when the plaintiff got upon the track the cars were at Leonard’s corn-crib, when the horse became unmanageable and ran north upon the track, towards the depot. John Buckley says, “When Buckner went on the track the cars were forty or fifty yards off.” “ The horse turned to the north; the wagon was on the track.” On this state of facts, the court was asked to instruct the jury, for the defendant, that the plaintiff had no business upon the track above the crossing, and that he was there of his own wrong and at his own risk, if without permission, and that he could not recover for an injury there sustained, unless willfully committed by the defendant. This the court gave with this explanation: “ This would not apply, if the jury should believe, from the evidence, that the horse rushed on the track north of the crossing to avoid the engine, or the plaintiff turned him that way for that purpose.” This threw upon the defendant the consequences of acts of the horse in rushing up the track from the impulse of fear, or of the acts of the plaintiff arising from the same cause, although it may have been, as indeed it appears to have been, the most reckless course that could have been taken, if it was the voluntary act of the plaintiff. But it was no doubt the act of the horse in a state of alarm, he having become unmanageable, rushing to destruction in the shortest and most obvious way possible. And to this uncontrolable act of the horse is this accident attributable. If he had time to go ten yards up the track before he was overtaken by the train, which was forty or fifty feet from him when the wagon was on the track, and necessarily the horse across it, it is difficult to perceive why he could not have crossed the track before the train would have reached it, had he kept on at the same speed. That would seem to be demonstrable as a mere question of time and distance. Mow who must be responsible for this act of the horse? Undoubtedly, the plaintiff, who owned him, and who drove him there, without knowing that he was reliable. But the court told the jury, if the plaintiff turned him there to avoid the engine, then he was there rightfully. That would depend upon whether that was a judicious and proper course to avoid the danger. If it was a careless or reckless running into danger to go there', then the plaintiff must himself suffer the consequences of that act, no matter what motive may have prompted the act. This explanation of the instruction was wrong.
But without this, it seems to us, that there was a great want of proper care in the plaintiff, knowing as he did, that he could not hear an approaching train like ordinary persons, in not keeping a vigilant look out, that he might see it, when approaching a railroad crossing. That he could have seen the train had he looked down the track with a vigilant attention, there can be no doubt, and it is equally apparent that if he had seen its approach, he could and no doubt would have avoided the danger, and have saved himself this great calamity. This is even a stronger case of inattention and carelessness on the part of the plaintiff, than was that of Book Island Railroad Co. v. Still, 19 Ill. 499, though in some of its features very much like it.
"We must reverse the judgment, and remand the cause.
Judgment reversed.