delivered the opinion of the Court:
No question is made in regard to the admission or exclusion of evidence. The only question, therefore, to be considered is, whether the law governing the case was properly given to the jury by the instructions of the court.
The court gave two instructions on behalf of the plaintiff, and they are both claimed to he erroneous. The first in substance directed the jury that if they' believed, from the evidence, that the plaintiff, while exercising ordinary care to avoid the injury, was injured by the negligenee of the defendant, as charged in the declaration, they will find for the plaintiff. The second count of the declaration charged the defendant with negligence in failing to have a flagman at the place of the accident, in violation of an ordinance of the city of Chicago, and it is claimed that the words of the instruction, “as charged in the declaration, ” left the jury to determine the applicability of the' ordinance to the circumstances of the case. We think this is a misapprehension of the meaning of ’ the instruction. Whether the railroad was required to keep a flagman at the place of the accident, whose duty it was to flag persons whq attempted to cross the track, was not alluded to or mentioned in the instruction. If the negligence of the defendant was established by the evidence, that evidence was necessarily confined to the averments of the declaration, as negligent acts not averred in the declaration could not be proven,—and we perceive no substantial objection to the instruction;
The second instruction, to which objection is made, declared, in substance, that if the jury believed, from the evidence, under the instructions of the court, that the plaintiff was entitled to recover, then, in fixing the damages, the jury should take into consideration all the circumstances as disclosed by the evidence, “such as the circumstances attending the injury.” Under this last clause of the instruction, counsel for appellant urge that the jury might give punitive damages. There was no evidence introduced on the trial which would authorize the jury to give punitive damages, and by the terms of the instruction they were limited and confined to the evidence in making a verdict. Indeed, so far as appears from the record, there was no pretence on the part of plaintiff that he was entitled to recover punitive damages. As no such claim was made, and as no evidence was offered to establish a claim of that character, the instruction could not have misled the jury.
The court refused defendant’s instruction No. 1, which was as follows:
“The jury are instructed that it is the duty of a person, before attempting to cross a railway track, to stop, if necessary, and look and listen for the approach of trains, before entering upon such track; and if the jury believe, from the evidence, that the plaintiff in this case could have discovered the approach of the defendant’s train, and avoided the injury in question by having stopped his mule before driving upon the track, and looking and listening for the approach of said train, then he can not recover in this case, unless the jury shall believe, from the evidence, that the agents or servants of the defendant were guilty of gross negligence in the operation of said train.”
—And this' decision is relied upon as error. It is no doubt true that it is the duty of a person about to cross a railroad track, to approach cautiously, and endeavor to ascertain if there is present danger in crossing; and where the railroad track and crossing are so situated that the approach of a train can not be seen, it may be the duty of a person about to cross, to stop and look, to ascertain if a train is coming; but it is always a question of fact for the jury to determine, from the evidence, whether the person injured has exercised proper care and caution in crossing a railroad track, and not a question of law. It was the province of the jury to determine whether the plaintiff was guilty of negligence, and not for the court to tell the jury that certain facts constituted negligence. The instruction, as drawn, took the question of fact from the jury, and hence was erroneous, and for this reason the court did not err in refusing it.
The defendant’s ninth instruction, which the court refused, is liable to the same objection. It declared: “The jury are instructed that those in charge of the train which collided with the plaintiff were not bound to stop the same, in anticipation that plaintiff might drive upon the track. ” It was for the jury to determine, from all the evidence, whether those in charge of the train were guilty of negligence in not stopping the train before the collision occurred. Cases might occur where a railroad would be under no obligation whatever to stop its train, and on the other hand cases might arise where a failure to do so would be gross negligence. Each case must be determined by its facts, and those facts are for the jury.
On the trial the defendant read in evidence an ordinance of the city of Chicago, to the following effect: “No person, without first obtaining a permit therefor from the city council, shall hereafter establish or keep any lumber yard, or place for the storing, or piling, or deposit of lumber for sale, in quantities exceeding ten thousand feet, upon any land within the limits of the city, except such land fronts or abuts on navigable water.” The defendant also introduced evidence that Parsons & Foster owned the lumber yard where appellee was employed in hauling lumber, at the time of the accident; that they bought and sold lumber by the cargo, and the average quantity kept in their yard was three millions of feet. It was also proven that the premises occupied as a lumber yard did' not front or abut on navigable water, and it was not proven that Parsons & Foster had a permit from the city, as required by the ordinance. Under this evidence the defendant requested the court to give the following instruction:
“If the jury believe, from the evidence and the instructions of the court, that the lumber yard of Parsons & Foster, located on the corner of Fulton and Canal streets, in the city of Chicago, Cook county, Illinois, did not abut or front on navigable waters, and that said Parsons & Foster stored and kept therein lumber in quantities exceeding ten thousand feet, then the keeping of said yard by said Parsons & Foster was illegal, unless the jury shall find, from the evidence, that the said Parsons & Foster had a permit from the common council to keep said lumber yard; and the hauling of lumber to said yard, and the crossing of the defendant’s tracks for the purpose of hauling lumber, would in such case be illegal and wrongful on the part of the plaintiff, as an employe or servant of said Parsons & Foster. ”
This and several other instructions announcing in a different form the same principle, were refused. We do not think that the ordinance had -any legitimate bearing on the case, or on the rights or duties of the parties. It was doubtless passed to guard against the destruction of property by fire, and had no reference whatever to the duties of a railroad company, or the rights of an individual who might be employed by any one who kept lumber in quantity at a place prohibited by the ordinance whose duties might require him to cross the railroad track. Again, if Parsons & Foster kept a lumber yard contrary to the ordinance of the city of Chicago, that was a matter resting entirely between the firm and the city authorities, and in no manner concerned appellant,—so far, at least, as the railroad was required by law to run its trains. Parsons & Poster, and their employes, were entitled to the same protection in crossing the railroad track, although they kept a lumber yard in violation of the ordinance, as any other citizen of Chicago who might have occasion to cross the railroad track. If appellee had been a trespasser in going upon the railroad track, a different question might arise, but he was not. He had a right to cross the railroad track, which was constructed on a public street, and the company, in operating its trains, was bound to exercise proper care to avoid injury. If we are correct in this view, it follows that the instruction, and others announcing a similar principle, were properly refused by the court.
The court, on its own motion, gave one instruction to the jury, to which exception was taken. In the first part of the instruction the court gave the reason why certain instructions were refused. We do not understand that this was a proper subject for the consideration of the jury; but as the instruction could not affect the verdict, it could do no. harm to appellant, and hence can not be relied upon to reverse the judgment. The latter part of the instruction merely informs the jury that what a person approaching a railroad should do in order to exercise ordinary care for his safety, and what should be done in operating a railway in order to exercise the same degree of care for the safety of others, is a question of fact, for the jury to determine, from the evidence. We perceive no substantial objection to this portion of the instruction.
The judgment will be affirmed.
Judgment affirmed.