delivered the opinion of the Court:
This cause was tried in ’the court below, and submitted to the.jury, as manifested by the instructions given and refused, upon an erroneous theory, which was, that, from the fact of the citizens of Decatur having been in the habit of passing and re-passing over the portion of defendant’s right of way, where the injury in question occurred, the plaintiff had acquired some right which affected the defendant’s relation toward him, and that, at the time of the accident, he was in the exercise of a legal right. It very materially affects the question of the respective duties and liabilities of the parties, whether, at such time, the plaintiff was in the exercise of a legal right or not.
The right of way was the exclusive property of the company, upon which no unauthorized person had a right to be, for any purpose. The plaintiff was traveling upon defendant’s right of way, not for any purpose of' business connected with the railroad, but for his own mere convenience, as a footwav, in reaching his home, on return from a search after his cow. There was nothing to exempt him from the character of a wrong-doer and trespasser in so doing, further than the supposed implied assent of the company, arising from their non-interference with a previous like practice by individuals. But, because the company did not see fit to enforce its rights, and keep people off its premises, no right of way over its ground was thereby acquired. It was not bound to protect or provide safeguards for persons so using its grounds for their own convenience. The place was one of danger, and such persons went there at their own risk, and enjoyed the supposed implied license subject to its attendant perils. At, the most, there was here no more than a mere passive acquiescence in this use. A mere naked license or permission to enter or pass over an estate, will not create a duty or impose an obligation on the part of the owner to provide against the danger of accident. Sweeny v. Old Colony and Newport Ry. Co. 10 Allen. 373; Hickey v. Boston and Lowell Ry. Co. 14 id. 429; Phil. and R. R. Co. v. Hummel, 44 Penn. St. 375; Gillis v. The Penn. Ry. Co. 59 id. 129.
For all the purposes of this suit, the plaintiff stands in no more favorable condition than that of a wrong-doer and trespasser. He was not. at the time of the accident, in the exercise of a legal right, and was in the enjoyment of no more than a bare license or assent tacitly given, and his dutv and the obligation of the company are to be measured, as in the case of one thus situated. Where both parties are equally in .the position of right, which they hold independent of the favor of each other, the plaintiff is only bound to show that the injury was produced by the negligence of the defendant, and that he exercised ordinary care or diligence in endeavoring to avoid it. But where the plaintiff is himself in the wrong, or not in the exercise of a legal right, or was, at the time, enjoying a privilege or favor granted without compensation or benefit to the party granting it, and of whose carelessness complaint is made, he, the plaintiff, must use extraordinary care, before he can complain of the negligence of another. Aurora Branch R. R. Co. v. Grimes, 13 Ill. 585.
As a general rule, it is culpable negligence to cross the track of a railroad at a highway crossing, without looking in every direction that the rails run, to ascertain whether a train is approaching. Shearm. & Eedf. on Negligence, sec. 488, and cases cited in note; and the same degree of care and precaution, of course, should be required on the part of one traveling laterally upon the track.
With increased force did this requirement apply to this plaintiff, who was not lawfully using the railroad track. He only says that, when he went on to the road, he looked and saw no engine. But this was not enough. He should have kept constant watch, while he was traveling along the track, for the approach of an engine. Besides, there was ample space between the tracks for plaintiff to have walked, without exposure to danger on either track; and there would seem to have been an omission of due care in not so walking in the place where he was, as not to place himself needlessly within striking distance of the engine.
The negligence of defendant alleged in the declaration is, in not ringing a bell or blowing a whistle before the engine crossed the railroad crossing, and in not slackening speed as it approached and passed over the crossing, and in running at a great rate of speed; and it is further insisted on in argument, as negligence, that there was no fireman employed on the engine, and that those in charge of the engine had their attention directed to the train on the other road, near the crossing, instead of forward, along the track. But the defendant, under the circumstances of this case, is clearly chargeable with no such negligence as this. It is only for wanton or wilful injury that the defendant is here chargeable, or such gross negligence as evidences wilfulness. Notwithstanding the plaintiff was unlawfully upon defendant’s right of way, or not in the exercise of a legal right, and that his own lack of ordinary care exposed him to the risk of injury, yet the defendant might not, with impunity, wantonly or wilfully injure him. And if defendant’s servants, who were in the management of the engine, after becoming aware of plaintiff’s danger, failed to use ordinary care to avoid injuring him, defendant might be liable. And this, as we conceive, is the only measure of liability to be claimed, under the facts of this ease, laying out of view any breach of the ordinance, which will be hereafter referred to. The Aurora Branch R. R. Co. v. Grimes, supra.; Galena and Chicago Union R. R. Co. v. Jacobs, 20 id. 478; St. Louis, Alton and Terre Haute Railroad Co. v. Todd, 36 id. 409; Chicago and Alton Railroad Co. v. Gretzner, 46 id. 74; Shearm. & Redf. on Negligence, secs. 25, 36; 1 Redf. Law of Railways, 464, 468; The Tonawanda Railroad Co. v. Munger, 5 Denio, 255; Phil. and R. R. Co. v. Hummell, and Gillis v. The Penn. Ry. Co. supra.
The principle embodied in defendant’s refused instructions, is in conformity with the views here expressed, and, as applied to the facts of this case, we regard them as substantially correct, and that they should have been given.
The 2d instruction given for the plaintiff (and the 6th and 7th are liable to the same objection,) is erroneous, in intimating the idea that the use of defendant’s road by citizens, to walk back and forth upon without hindrance or objection by defendant, constituted the same a public thoroughfare for people to walk upon.
The company did not, in any sense, hold forth an invitation to the public to use this track for foot travel. The railroad company owned the right of way, and had a clear right to a free track, which they had not yielded up or modified by any act of their own, and the jury should not have been misled, by the instructions, to think otherwise, as they well might have been.
The omission to notice other instructions given for the plaintiff, is not to be understood as an implied sanction of them. In so far as they may run counter to the views here announced, they must be deemed erroneous.
What has been said is without reference to the question of the rate of speed of the engine-being greater than that prescribed by the ordinance of Decatur, introduced in evidence. The declaration contains no allegation that there was a city ordinance regulating the speed of trains, and objecti.on was made to the introduction of the ordinance in evidence, because the defendant had not been charged with a breach of the ordinance.
. In Illinois Central Railroad Co. v. McKee, 43 Ill. 119, the negligence charged in the declaration was, in not maintaining and keeping in repair a fence; and it was held that testimony was inadmissible that a gate on the line-of the fence had been left open, because there was no allegation of negligence in that respect, to give notice to the defendant of what he was to defend against. Under the authority, of that case, we think the ordinance should have been excluded. Besides, the testimony as to the rate of speed being in excess of that prescribed by the ordinance, was conflicting, which rendered it important that the jury should have been correctly in7 structed in other, respects. What effect running at a rate of speed prohibited by the ordinance might have upon the rights of the parties, we are to be understood as expressing no opinion in regard thereto.
The judgment must be reversed and the cause remanded.
Judgment reversed.