delivered the opinion of the court:
The three grounds of reversal here urged may be stated to be: the trial court erred in refusing to give an instruction asked by the defendant at the close of all the evidence to find for the defendant, in refusing instructions asked by it upon the final submission of the case to the jury, and in the admission of improper evidence over the objection of its counsel.
Under the first ground, it is insisted that the conductor had no rig'ht or authority to authorize the plaintiff to walk along the track or bridge; that plaintiff was a trespasser in so doing, and that the evidence failed to prove, or tend to prove, that the servants of appellee were guilty of willfulness or wantonness in inflicting injury upon him. Whether or not the conductor could, under the peculiar circumstances of this case, bind the company by his directions to passengers belonging to his train need not be decided. We are of the opinion that, admitting the plaintiff below was a trespasser while attempting to cross the bridge, the evidence fairly tends to show that his injury was the result of the willfulness of those in charge of the train, and that his recovery should be sustained upon that ground alone. As appears from the foregoing statement of facts, when he came to the south end of the trestle-work other passengers had crossed over the same place and entered the train. He was some distance upon the bridge when the train, being but a short distance from the north end, without any signal or warning began to move backward over it. The evidence clearly tends to show that one of the men in charge was upon the rear end of the train, in plain view of the perilous situation of the plaintiff and those with him, and that he actually saw the danger, calling to them to run but making no effort whatever to stop the train or give an alarm. It is said that even if the man in the blue uniform was one of the trainmen it does not appear that he could have prevented the injury by stopping the train. The rule is, that the trial court should not take a case from the jury on the motion of the defendant unless the evidence, with all its reasonable inferences and intendments, fails to fairly tend to prove the plaintiff’s case. It is well known that trains of cars for the carriage of passengers are always equipped with appliances by which signals may be given and communicated to the engineer to stop and start them. To say, as we must, that the object in placing a man upon the rear of the train was to look out for persons on the track and avoid accidents, and at the same time to assume, in the absence of all proof, that he was wholly without the means of stopping the train or making any effort to do so, would be unreasonable. We have often had occasion to hold that it is not for us to determine upon this issue whether the weight of the testimony justified the finding or not, but only whether there was evidence fairly tending to support the verdict. Such gross negligence as evidences willfulness will entitle a plaintiff to recover even though he be a trespasser. (Illinois Central Railroad Co. v. Godfrey, 71 Ill. 500; Blanchard v. Lake Shore and Michigan Southern Railway Co. 126 id. 416.) Such gross want of care and regard for the rights of others as will justify the presumption of willfulness or wantonness will make the defendant liable for injury to a plaintiff. (Lake Shore and Michigan Southern Railway Co. v. Bodemer, 139 Ill. 596, and cases cited.) In Illinois Central Railroad Co. v. O’Connor, 189 Ill. 559, and like cases, it was held there was no liability because there was an entire absence of evidence that the company’s employees had knowledge of the fact that the plaintiff was on its track. We do not.hold that it was the duty of the trainmen to anticipate the presence of trespassers on the tracks or to keep a lookout for them, but we do hold that when they knew that persons were there they had no right to willfully run them down and inflict injury upon them.
The appellant asked the court to instruct the jury that “the plaintiff, while upon the trestle, bridge or viaduct of the defendant, was a trespasser thereon,” which it refused, and it is insisted that such refusal was error. We do not think so. Whether he was a trespasser or not was a question of fact for the jury under proper instructions, and the court, at the instance of the defendant, told the jury “that a trespasser is one who goes upon the property of another without the consent of the owner thereof;” and further, that “if the jury believe, from the evidence, that the plaintiff went upon the trestle, bridge or viaduct of the defendant without the consent of the defendant, then the plaintiff was a trespasser thereon;” “that if the defendant was the owner of a trestle, bridge or viaduct, and if the plaintiff went upon such trestle, bridge or viaduct without the consent of the defendant, then the plaintiff was a trespasser thereon,” and that, “as a matter of law, conductors and brakemen in charge of a train of a railroad company are not presumed to have authority to license or permit any person to go upon the private property of the railroad company outside of its station or station grounds, and if the jury believe, from the evidence, that any conductor or brakeman in the employ of the defendant told the plaintiff that he might use the right of way, bridge, viaduct or trestle of the defendant for his convenience in reaching a pleasure resort more than one mile distant from the railroad station, such statement of the conductor or brakeman gave no authority to the plaintiff to go thereon, unless it be shown that such conductor or brakeman had authority to give such permission.” What more could it ask on the question of the plaintiff being a trespasser, and what more could the court have fairly told the jury on that subject?
Another instruction asked by the defendant and refused was to the effect that if the plaintiff was, at the time of receiving his injury, a trespasser upon the track of the defendant, he could not recover unless the injury was inflicted by the defendant through gross negligence or willfulness. It need only be said that all there is in that instruction applicable to the case was given in others at the instance of counsel for the defendant.
It is finally insisted that the court improperly admitted evidence as to the effect of the injury upon plaintiff, —i. e., the difference in his conduct before and since the accident. This testimony tended to prove the extent, nature and probable permanency of his injuries. It was not denied upon the trial, nor does it seem to have been urged in the Appellate Court, that the injuries were of the serious character insisted upon. We have carefully considered the objection urged and the suggestions of counsel as to the incompetency of the testimony and are unable to see wherein it was improper.
.Plaintiff was permitted to exhibit the wound npon his head to the jury, and this counsel says was error, although he admits that this court has held otherwise. We are favored with no argument or citation of authorities to the contrary, and see no sufficient reason for not adhering to our former decisions in that regard.
We are not unmindful of the importance of this case, both to the plaintiff and the defendant; but after a thorough and painstaking consideration of the entire record we are unable to find any such errors of law as would justify this court in reversing the judgment-of the Appellate Court, .and it will accordingly be affirmed.
Judgment affirmed.