delivered the opinion of the Court:
An action was brought under the statute by appellee to recover damages from appellant for causing the death of B. M. Sykes. It is alleged the death'of the intestate was the result of negligence on the part of the company in permitting a side walk in the city of Knoxville, in this State, where the accident occurred, to be obstructed by a freight train standing on the track.
The main track of the road is located on the north side of the depot building. There is a side track on the south side of the station house, between it and the city of Knoxville. There is a public highway leading north from the city to the depot, on the side of which is a public side walk, and over it people pass to and from the depot. The side track south of the building crosses this sidewalk, so that persons going to the depot for the purpose of taking passage on the trains have- to cross this side track.
On the evening of the accident a freight train came to the station about five o’clock, ran in and stopped on this side track. It consisted of sixteen or eighteen cars, and when it "stopped the middle of the train was over the side walk. This train remained on the side track waiting for the passenger train to pass, until twenty minutes after five.
This train was not opened over the side walk to enable persons to pass to get on the passenger train, although it Avas expected in a feiv minutes. Deceased was at the depot for the purpose of taking the incoming train going east, but determined, before doing so, to return to his house, and he passed on the side Avalk under the end of a freight car that was over the side walk. On returning from his home, the freight train was standing in the same position, and, in endeavoring to pass through to reach the platform to take the passenger train,'the freight train started, and, although one of the railroad hands caught and pulled him out, his right foot was caught and cut two or three inches on its outer side. Medical attendance was procured by deceased, but in eight or nine days he died of lockjaw.
On a trial in the circuit court appellee recovered a judgment for $5000, from Which the railroad company appealed to the Appellate Court. On a trial therein the judgment was affirmed. And appellant brings the record to this court and asks a reversal.
Appellant insists that the circuit court erred in giving instructions for plaintiff and in refusing to give instructions for the defendant, and for that reason the Appellate Court erred in not reversing the judgment.
It is claimed that the fifth of appellee’s instructions is erroneous. It is:
“The jury are instructed that if they believe, from the evidence, that on May 26th, 1876, a freight train of the defendant was permitted to stand, by one Anderson, the conductor thereof, he being then and there an employee of the defendant, in charge and control of said train, on and over a public highway and side walk thereon, being a public street in the city of Knoxville, Illinois; that said train stood on. and over said street, between said city of Knoxville and the passenger depot there situate, and the main track of the defendant’s road, on which passenger trains passed and repassed; that Francis M. Sykes, deceased, was then and there passing from said city of Knoxville to embark on a passenger train then at said depot; that said freight train was then and there coupled together, entirely blocking up said street and side walk, and for so great a distance on each side thereof that it was apparently impossible for said Sykes to go round the same in time to reach and embark on said passenger train; that before attempting to pass under said freight train, said Anderson, so being conductor and in charge of said train, without separating the same, said to the deceased, ‘ Come on under, Mr. Sykes, you will have plenty of time/ and that deceased did, in accordance with, and in consequence of said direction of said conductor, and relying upon the same, without negligence on his part, and under such circumstances (under all the evidence in the case) as would induce an ordinarily prudent and careful man to believe that he could pass such train in safety—attempt to go through under said freight train, using such care and diligence as an ordinarily careful and prudent man would use, under all the circumstances^in accepting and acting upon such direction, and that while deceased was then and there so passing under said freight train, using all possible care, caution and diligence to pass the same, said train suddenly started without the ringing of bell or sounding of whistle to give notice thereof, and ran over the foot of the deceased, inflicting an injury which was the direct cause of the death of the deceased, then the jury may, if such facts are proven, find the defendant guilty, and assess plaintiff’s damages at some amount not exceeding the sum of $5000, claimed in the plaintiff’s declaration.”
This instruction is not clear in its statement of the facts .upon which the jury were required to act. It is involved, and its meaning is not readily perceived by persons not in the habit of carefully examining written language. It, to present the question whether the deceased had the right to act upon what the conductor said, refers to many other circumstances, but not to all. It is argumentative, and is not' explicit in announcing the rule of law it sought to present to the jury. But, treating it as though it had been explicit, does it announce a correct legal proposition ? It will not, we presume, be contended that a conductor may wilfully or recklessly invite or direct passengers or other persons to assume dangerous risks, or to go into danger without any care by such persons, so as to ‘bind the company. Whilst passengers may, to some extent, rely on the superior experience and knowledge of conductors, they, at the same time, are not thereby entirely absolved from the exercise of care and prudence on their part.
In this case there clearly was negligence by both parties. It was negligent on the part of appellant to leave the freight train across the side walk without opening it so as to permit persons to pass without obstruction. Again, it was negligent for deceased to pass under the end of the freight car. And although he may have been invited or directed by the conductor of that train to pass under, if the act was dangerous, and would be considered so by prudent persons generally, it was for the jury to say whether his negligence was slight, and that of the agents of the company gross. Row, this instruction ignores this element entirely. That it was important to be considered must be apparent. We have seen that deceased was under no obligation to act on the suggestion of the conductor, nor was he justified in doing so, if it was clear that he thereby incurred great hazard. And it was for the jury to determine whether, under the invitation of the con.ductor, if it was given, and the fact that he had charge of and command over his train, the negligence of deceased was slight. And, whether leaving the train across the public side walk and thus obstructing the free passage of the street, and in the conductor saying to deceased to come through, if they found he did, was gross negligence. The questions are prominently and undeniably presented by the evidence, and they should have been presented to the jury by this instruction, and failing to do so, it was erroneous and should have been refused or modified.
The instruction is inaccurate in telling the jury that, if they found defendant guilty, they might assess plaintiff’s damages at some amount, not exceeding $5000, the amount claimed in the declaration. This part of the instruction leaves the jury at liberty to find any amount not exceeding the amount claimed, without the slightest reference to any proof of the amount of damages sustained. It amounted to an uncontrolled license to find any sum under the limit that they might choose, and, as they have found to the full limit, it may be, and probably they did, exercise the liberty the instruction gave them, Avithout reference to the evidence on that question. In this class of cases, instructions should be accurate and precise in reference to the finding of damages. This may have misled, and probably did mislead the jury in assessing damages.
It is urged with apparent earnestness that deceased violated the 54th section of the Railroad and Warehouse law. Rev. Stat. 1874, p. 810. We are unable to understand in Avhat manner that section has the slightest application to the facts of this case. Deceased was not climbing, stepping, standing upon, clinging to, or in any way attaching himself to any locomotive engine, or ears, either stationary or in motion, upon this track. These are the only cases provided for by the section. It only requires the reading of this section to see it has none the slightest application to deceased. Argument or reasoning can not render it plainer. It will bear no construction, and it is plain it can not be held to embrace a case like this.
Did the court err in refusing instructions asked by appellant? The third of appellant’s instructions as asked informed the jury that it is gross negligence for any intelligent person familiar with railroad travel to pass under a train wdth an engine attached, with steam up, and liable to start at any moment, and if deceased was such a person, and he did go under this train, and it was so situated, that he was then guilty of gross negligence, and plaintiff could not recover. Before it was given, the court modified it so as to read, if he did go under such car “ uninvited,” that then he was guilty of gross negligence. This presents the question, whether the conductor had power to authorize him to pass under the car. It may be doubted whether any employee of the company, with the engineer or conductor having charge of the train, could bind the company by such permission. But, as we understand the operation of these roads, the conductor of each train has control over it. He can require the engineer to start and stop at pleasure, unless it be in direct violation of regulations governing the engineer. In this case, if the conductor had such power, as we suppose he had, then deceased undeniably had the right to rely and act on the invitation, unless he had reason to' suppose it was hazardous. Deceased could not suppose, after saying, “ Come on; you will have plenty of time,” he would require his train to start until he had got from under the train. He, therefore, had the clear right to suppose, from what the conductor said, if it is proved he made the statement, as he had ample power to control the train, and was present, and could, and did, know he was in a dangerous position, the train would not be started.
It may, however, be said that this was outside of and beyond the duty of the conductor. This is, perhaps, true. But he had wrongfully obstructed the pass-Avay to the depot. He should have opened it, to permit persons to pass through, but this he neglected. And being in the wrong in that regard, what more natural than to suppose he would hold his train until deceased had passed? Any person would have so supposed, especially after being invited to pass. He Avas then in the employment of the company, and in the transaction of its business. And this order or invitation, if it Avas given, was not Avholly outside of its performance. It was his duty to haAre opened his train, and, failing to do so, he undertook to perform that duty in another mode, by directing deceased to pass under the end of the car. But, even if not so endeavoring, he was engaged in the performance of his duty to the company] and was, in this matter, not so acting as though engaged in his own private affairs. Although injury resulted from an act he Avas not required by the company to perform, it was connected with the business of the company, and in the performance of which he Avas engaged.
The act Avas no more disconnected from the business of the company than the wanton discharge of steam by an engine driver to frighten a team that ran aAvay and injured the owner. In such a case the company was held liable for his acts, as in sounding a whistle for a like purpose, whereby both persons and property were injured. Toledo, Wabash and Western Railway Co. v. Harmon, 47 Ill. 298; Chicago, Burlington and Quincy Railroad Co. v. Dickson, 63 id. 151. These cases govern this question.
It is insisted that the court erred in refusing to give appellant’s thirteenth instruction. It announces that deceased was not warranted in passing under the car, although he might have been unable to take the east bound passenger train, and, although the conductor might have told him to “ Come on •, you have plenty of time.” This entirely ignores the fact that the conductor had control of the train, and that deceased, for that reason, had a right to suppose he would hold it until he had passed through. For this reason the instruction was properly rejected.
The sixteenth of appellant’s instructions was properly refused. The Circuit Court, as we have uniformly held, has no power to take the decision of facts from the jury. When there is evidence tending to prove the issue, the evidence must be submitted to the consideration of the jury. In this case there was evidence tending to prove liability on the part of appellant, and it would have been manifest error to have instructed the jury to find for the defendant.
The other questions attempted to be raised have no force, and we deem them so plain as to require no discussion.
For the errors indicated, the judgment of the Appellate Court is reversed, and the cause remanded.
Judgment reversed.