delivered the opinion of the court:
This was an action on the case, brought in the circuit court of Effingham county by appellee, against appellant, to recover damages consequent on the death of James H. Alsop, who was killed on the night of February 11, 1895, by a train on appellant’s road, where he was employed as a track-walker -and watchman.
The declaration alleges in the first and fourth counts that the deceased was employed by appellant as night watchman, and avers-“that his duty as such night watchman was to go each and every night from one end of a division or section, to-wit, six‘miles long, along defendant’s railroad track, to-wit, three miles each way from said Beecher City to the other end thereof,” and that on February 11, 1895, as he was returning in the night time from the south end of such section, using due care and diligence for his own safety, a freight train of appellant, which was running a half hour ahead of time, ran into, struck and killed him through the negligence of defendant’s servants, who were not fellow-servants of the deceased, and who carelessly, improperly and negligently ran said freight train ahead of time. The second and third counts contained similar averments, except, instead of alleging that such train was running ahead of time, the averment was, “then and there the headlight of said locomotive engine was not burning, although it was the duty of the defendant to have the said engine provided with a good and sufficient headlight, and that the defendant, through the carelessness and negligence of its servants whom it had placed in charge of the said engine, in not having the said engine provided with a headlight,” ran over and killed James H. Alsop. In the several counts of the declaration it is averred that the deceased left a widow and children, who, by reason of his death, were deprived of their means of support.
Defendant pleaded the general issue, and a trial was had. At the close of plaintiff’s evidence the defendant moved the court to instruct the jury to return a verdict for the defendant, which motion was refused and the defendant excepted, and this ruling of the court is assigned as error. After the motion made at the close of plaintiff’s evidence was overruled, the defendant introduced evidence to meet that offered by the plaintiff, and did. not renew the motion,, at the close of all the evidence, to instruct the jury to find for the defendant, and asked for instructions covering the various phases of the-case.
Where a defendant moves to instruct the jury, at the 'close of the plaintiff’s evidence, to find for him, and that motion is overruled and he fails to stand by it, but introduces evidence to contradict that of plaintiff, and fails to renew the motion at the close of all the evidence, then the motion made at the close of plaintiff’s evidence must be considered as waived. (Joliet, Aurora and Northern Railway Co. v. Velie, 140 Ill. 59; Chicago City Railway Co. v. VanVleck, 143 id. 480; Ames & Frost Co. v. Strachurski, 145 id. 192; Harris v. Shebek, 151 id. 287.) The defendant being thus in the position of having waived its right to assign error in overruling the motion made at the close of plaintiff’s testimony, the question ife not before us on this repord.
From the facts it appears that about eleven o’clock on the night of February 11, 1895, the deceased was returning from the south end of his section towards Beecher City on a railroad velocipede, and while passing- over a long line of trestle-work, which had been filled in with earth to within about two feet of the top, was overtaken, run over and killed by a freight train of appellant, which was running at the speed of about twenty miles an hour and was about half an hour ahead of time. There was evidence also showing that at Altamont, the first station south of Beecher City, the headlight on the locomotive was not burning. On this question there was conflict in the evidence. Plaintiff recovered a judgment for §4500, which was affirmed by the Appellate Court for the Fourth District, and this appeal is prosecuted.
A demurrer was interposed to the declaration, which was withdrawn and plea filed. After verdict a motion for a new trial was entered, which was overruled. A motion in arrest of judgment was then entered, which was also overruled and judgment entered on the verdict. The point made on the motion in arrest of judgment was, that the declaration failed to state any cause of action. The second and third counts of the declaration alleged there was no headlight burning on the locomotive. This was an averment of a fact which would be sufficient to constitute negligence on the part of the company, and the rule is, if one count in a declaration is good a motion in arrest of judgment will be overruled. It is a high degree of negligence to run a train without a headlight on a dark night, as this was shown to be. (Burling v. Illinois Central Railroad Co. 85 Ill. 18.) It was not error to overrule the motion in arrest of judgment.
Appellant assigns eight errors-on this record, the first of which is that the court erred in admitting improper evidence for plaintiff, and the second is that the court erred in refusing to admit proper evidence for defendant. Appellant fails to point out any evidence excluded, and the second assignment of error is therefore not well taken.
A witness who lived twenty-seven rods east of a road crossing, and a quarter of a mile south of where the accident occurred, was permitted to testify that he saw the freight train when it crossed the public highway and heard no whistle. This evidence would not be material as showing a substantive right of recovery under the averments of this declaration, but would be admissible as tending to show that the deceased was not aware of the approach of the train and was not notified of its approach. The assumption of risk by a track-walker in the discharge of the duties for which he is employed includes all risks incident to his employment. But such assumption of risk does not release the railroad company from the discharge of a duty imposed upon it by the statute, which provides that on approaching a street or road crossing a bell must be sounded. The discharge of this statutory duty by the corporation might give notice to one situated as was the deceased, of the approach of the train, and cause him to use a degree of care and caution commensurate with his danger, and for this purpose the evidence would be admissible. The first assignment of error is therefore not well taken.
The third assignment of error is, that the court erred in refusing to instruct the jury to find a verdict for the defendant at the close of the plaintiff’s evidence. The seventh assignment of error is the overruling of the motion in arrest of judgment. What we heretofore have said disposes of these assignments adversely to appellant’s contention.
It is insisted that there was error in giving instructions for the plaintiff. The first instruction was to the effect that if the deceased, in the discharge of his duty, was going along the track on a velocipede, using care and caution such as would be used by an ordinarily prudent man, and was killed by defendant’s engine and train which were running ahead of schedule time, and as a result of so running ahead of time, and if the running of the train ahead of time was negligence, the plaintiff could recover. (Chicago, Burlington and Quincy Railroad Co. v. George, 19 Ill. 510.) The duties of the deceased required him to pass over the road in the night time, and it is but reasonable to assume that he knew of the schedule time of trains. A man on a hand-car or a velocipede of this character would not ordinarily hear an approaching train, and his situation would be rendered exceedingly dangerous if each train crew might, at their pleasure, run their train ahead of schedule time. Whether such acts on the part of the train crew constituted negligence under the circumstances could properly be submitted to a jury. We hold it was not error to give the first instruction.
Objection is taken to the second instruction, which was to the effect that if the train which caused the injury was running without a headlight and by reason thereof the injury was caused, and that to so run the same without a headlight was negligence, then the plaintiff could recover. In the discussion of the motion in arrest of judgment we have, in effect, disposed of the objection to this instruction, and it was not error to give the same.
A discussion of the other instructions given for the plaintiff, with reference to the care and caution that must be used, as to the degree of proof required of each particular fact, and as to the measure of damage, would unduly extend this opinion. From a careful examination of the instructions we find no reversible error.
The facts having been settled by the Appellate Court, by the questions of law herein determined the judgment of the Appellate Court for the Fourth District must be affirmed.
Judgment affirmed.