delivered the opinion of the court:
Ben Eicher, husband of appellee, was struck by the pilot-beam of an engine of appellant while walking on its right of way between the railroad tracks in the city of Carbondale on July 23, 1901, and was killed. Appellee was appointed administratrix of his estate and brought this suit to recover damages resulting from his death.
There were two counts in the declaration, in each of which it was averred that there was a cinder path between the double tracks of defendant’s railroad, used by its employees and other persons as a walk, and that deceased was walking along said cinder path in the exercise of due care and caution for his own safety, and was killed by the negligent operation of the engine and train. Both counts charged negligence, generally, in the management of the engine and train, and in addition thereto the second count averred that the cinder path was generally used, and was a smoother road for pedestrians and a better walk than the public road alongside the right of way on the west; that there was an ordinance of the city limiting the speed of passenger trains to ten miles per hour; that the passenger train, which was known as the “Past Mail,” was running at a higher rate of speed than was permitted by the ordinance; that the deceased, while walking along the main track, hearing the whistle of the engine, looked back and stepped from the main track to the cinder path, and that he yas struck and killed by the engine by reason of defendant’s negligence. The defendant pleaded the general issue, and upon a trial there was a verdict for §2500, on which judgment. was entered. The Appellate Court for the Fourth District affirmed the judgment.
At the conclusion of all the evidence the defendant moved the court to direct a verdict in its favor, and presented an instruction for that purpose, which the court refused to give. The refusal is assigned as error, and the assignment raises the question whether there was evidence which, as a matter of law, fairly tended to prove the cause of action.
The accident was witnessed by several persons, including the postal clerk on the train and a switch hand standing on the tracks, who were called as witnesses by the plaintiff. The evidence on the part of the plaintiff, and all the evidence produced at the trial tending in any degree to prove the allegations of the. declaration or sustain a cause of action, tended to prove the following facts: Something over half a mile north of defendant’s depot and the public square in the city of Carbondale there is a switch tower and a railroad crossing, and from that point south there are double main tracks. Southbound passenger trains take the west track and northbound trains the east track. Between these two main tracks, from the switch tower to the depot and public square, there is a space a little over ten feet wide filled level with the tops of the ties with cinders and ballast, making a smooth, even walk and path, which is traveled and used by defendant’s employees and others quite generally, both for business and pleasure. Persons who have occasion to go that way use the -path, and people are accustomed to walk out along the path on Sundays for recreation. There is a public road adjoining the right of way on the west, leading into the public square at Carbondale, but the path between the tracks makes a better walk, especially in muddy weather. Between the tower "and the depot there are junctions of branch lines or divisions with the main line, and there are also side tracks in addition to the two main tracks. At the time of the accident the fast mail train due at Carbondale at 11:20 A. M. was approaching from the north. The day was clear and the weather very warm. There was nothing to obstruct the view of the train, or the view from the train of any person on the track. The deceased was walking from the north between the main tracks toward the public square and depot. The train whistled north of the switch tower, and at that point took the west track. As the train approached, the deceased was a short distance north of a switch stand which was a little over seven hundred feet north of the depot. The train was running about fifteen miles an hour, and there was an ordinance limiting the speed of passenger trains within the city to ten miles an hour. Until the train was close to him the deceased was walking in the center between the two tracks, and was entirely out of danger. The engineer was on the right side of the cab, in his place, and the head of the engine cut off his view of the deceased about one hundred and twenty-five feet before reaching him. As the train approached, the deceased veered toward the track the train was on, and just before he was struck was seen by the postal clerk, a switch hand and another witness to be in a position of danger. The judgment of the postal clerk, in his testimony for the plaintiff, was that the train was within one hundred feet of the deceased when it was plain to be seen that he was going toward the track, and that he was within four or five feet of the engine when it seemed as though he was close enough to be struck by it. Plaintiff’s witnesses differed somewhat in their opinions as to the distance from the train when he came close enough to the track to be struck by the engine, but they agreed that it was a very short distance. The switch hand testified that at the time the deceased was struck he was wiping the sweat off from his face; that h'e took a handkerchief out of his rig'ht-hand hip pocket and wiped off the sweat just as he was struck. The witness beckoned to him to get away from the track and also called to him, but could not make him hear. The pilot-beam extended over the rail sixteen or eighteen inches, — about as far as the ends of the ties. No signal was given and the speed of the train was not checked. ,
A railroad company owes no duty to a person walking along its tracks without its invitation, either expressed or implied, except to refrain from wantonly or willfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril; and it makes no difference in that respect whether he is a trespasser, a mere licensee or one who is on the tracks by mere sufferance, without objection of the company. One who g'oes upon a railroad track by permission, or where permission may be implied from the circumstances, may be regarded as having a license, but one who is there by mere sufferance is not a licensee and may be a trespasser: In either case there is no duty toward him except to refrain from wantonly or willfully injuring him. (Illinois Central Railroad Co. v. Godfrey, 71 Ill. 500; Lake Shore and Michigan Southern Railway Co. v. Bodemer, 139 id. 596; Illinois Central Railroad Co. v. Noble, 142 id. 578; Wabash Railroad Co. v. Jones, 163 id. 167; Illinois Central Railroad Co. v. O'Connor, 189 id. 559.) In Illinois Central Railroad Co. v. Godfrey, supra, no distinction was made between a licensee and a trespasser, but the same rule was applied to both, and it was said: “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.” One who has permission or license to travel along the tracks takes it subject to the use of the road without reference to him. The license imposes no obligation to take precautions for his safety, or to run trains in any respect different from what they would be run if he was not there. He takes, the premises as he finds them, with all the attendant dangers, connected with their use, only subject to the limitation that the company shall not inflict upon him wanton or intentional injury. (2 Thompson on Negligence, sec. 1713.) It has been said that railroad companies are engaged in the performance of public duties and represent the right and interest of the public in cheap, safe and rapid transit, and if they owed a duty to run their trains with reference to trespassers or licensees, to look out for them, to slacken speed and perhaps to stop wherever they have reason to expect them, the public would suffer and the public duty would not be discharged. (3 Elliott on Railroads, sec. 1250; 2 Thompson on Negligence, sec. 1705.) And in Illinois Central Railroad Co. v. Hetherington, 83 Ill. 510, the court said: “The safety of the traveling public demands that the right of way of a railroad company should be unobstructed.” A railroad company has no right to disregard its obligations to the traveling public or disable itself from their full performance.
The rights of trespassers and mere licensees are entirely, different from the rights of those who come upon the premises of a. railroad company for a purpose connected with its business, where the invitation and the mutual interest raise a duty toward them. An invitation to come upon the premises at proper places for the purposes of business may be implied, but in this case the deceased was not upon the premises of the defendant for any such purpose. There is no controversy whatever over the fact that he was walking upon this path merely for his convenience, and that he was either a trespasser or there by sufferance, or, at most, there was a mere license to the public arising out of the fact that defendant had made no objection to the use made of the walk. All that was proved was, that the space between the two main tracks was filled with cinders and ballast level with the tops of the ties, so as to be smooth and firm, making a better way for walking than the public road adjoining, and that it was used by the employees of the defendant and the public without objection. The fact that the space was so filled had no tendency to prove an invitation to the public to use the foot:path or that it was prepared for public use. It would be a wholly unwarranted assumption to say that defendant made the pathway for public use and invited the public into a place of danger for no benefit or advantage to itself and for no purpose in connection with its'business, merely because it did not forbid the use of the path. The place was used by employees of the defendant and was within its switch yards. It was its duty to use reasonable care to provide a safe and suitable place for its employees to work. Railroad tracks within switch limits must be ballasted so as to render them reasonably safe for the use of employees in the performance of their duties, and an employer might be held liable for a failure to use such reasonable care. (Lake Erie and Western Railroad Co. v. Morrissey, 177 Ill. 376.) Defendant might be liable for a failure to perform that duty, and the fact that it did perform it is no evidence of an invitation to the public. The failure to object to the use did not amount to an invitation to the public to come upon its tracks and expose themselves to danger, or impose an obligation to run trains in any respect different from what they would be run if there were no such use. Defendant would not be justified in willfully or wantonly injuring a person upon the track, and in Wabash Railroad Co. v. Jones, supra, where the second and third counts charged that the engineer saw the plaintiff and recklessly and wantonly ran over him, we held that the plaintiff would have a right to recover for an injury so alleged, regardless of the question whether the engineer had reason to suppose that some person might be using the track as a path. In this case, however, there was no evidence tending to show a willful or wanton injury, or that the defendant did not usé reasonable care to avoid injuring the deceased after he was seen to be in a position of danger. The evidence introduced by plaintiff proved beyond question that the deceased was in perfect safety until the engine was so near to him that it could not have been stopped by any kind of effort that might have been made, even if not running faster than ten miles an hour, and that he veered toward the track into a position of danger after the view of him was entirely cut off from the engineer by the front of the engine.
It is argued that inasmuch as the train was running faster than ten miles an hour, as limited by the ordinance, there was a presumption of negligence on the part of the defendant, which would constitute a cause of action. It is true- that such fact does raise a presumption of negligence, but it is negligence merely, which, as we have already seen, would not justify a recovery. In Illinois Central Railroad Co. v. Hetherington, supra, where a train was running at the rate of fifteen miles an hour in violation of an ordinance, it was held that the speed of the train could -not alone be regarded as a sufficient reason for holding that the injury was willful or wanton, and the language there used was quoted and approved in Blanchard v. Lake Shore and Michigan Southern Railway Co. 126 Ill. 416. The evidence did not tend to prove such conduct on the part of those in charge of the train as would create a liability against defendant.
The declaration alleged that the deceased was upon defendant’s right of way and did not show that he was rightfully there, by invitation or otherwise, and charged mere negligence on the part of the defendant. Instructions given at the request of the plaintiff authorized a recovery upon proof of the negligence charged in the declaration, and they were not in accordance with the law. It is urged that the case was tried and submitted to the jury on the part of the defendant upon the question of willful or wanton injury, and therefore it cannot complain of the reference to the declaration. It is true that after the refusal of the court to direct a verdict, general instructions were asked by the defendant, and given, requiring proof of a willful or wanton injury; but these could not remedy the effect of the instructions authorizing a verdict of guilty upon proof of mere negligence. The instructions are in irreconcilable conflict, and do not present any harmonious view of the law. While it has not been deemed cause for reversal that the' jury-have been referred to the declaration where they would, not be misled by the instructions, the admitted facts in this case were such that a recovery could not be had. upon proof of the negligence charged in the declaration. There was one instruction telling the jury that if the deceased was not,a trespasser on the right of way and was exercising ordinary care, and the defendant was guilty of the negligence charged in the declaration causing his. death, they should find the defendant guilty. There were-two instructions to the like effect in case the jury believed that the defendant was guilty of the negligence-charged in the second count of the declaration. Although the jury might believe that the deceased was not a trespasser but was exercising the right of a mere licensee or was on the track by sufferance of the defendant, there could be no recovery on account of negligence charged in the declaration. An instruction given at the instance-of the plaintiff advised the jury that it was gross negligence on the part of defendant to run its trains through, a town at a rate of speed prohibited by an ordinance. While the circumstances of a particular case, such as a. high rate of speed and the presence of a number of people, may be evidence of gross negligence, it is not a rule-of law that negligence in running a train at a prate of speed prohibited by an ordinance is gross. The error in giving these instructions was not cured by any instrúctions given on the part of the defendant.
The judgments of the Appellate Court and the circuit court are reversed and the causé is remanded to the circuit court.
Reversed and remanded.