At the close of all the evidence appellant moved for a peremptory instruction directing the jury to" return a verdict of not guilty, and the action of 'the court in overruling that motion is assigned as error. Appellee insists that appellant is estopped from asserting that there was no proof of negligence on its part or of the exercise of due care by decedent, for the reason that, after this motion was .overruled, appellant requested, and the court gave, instructions which submitted' to the jury these matters as questions of fact. We have recently decided this proposition adversely to appellee’s contention, and it is unnecessary to again discuss it. Chicago Union Traction Co. v. O’Donnell, 211 Ill. 349; Illinois Central Railroad Co. v. Swift, 213 id. 307.
There is no conflict in the evidence, but the facts as testified to by the witnesses for the appellee are conceded to be true. It appears the deceased lost his life at a public highway crossing by being thrown from a flat-car upon which he was riding, by reason of one of his feet coming in contact with the cattle-guard fence located between the main tracks at that point. The fence was constructed at the proper place and in the usual manner, and had the deceased had his feet on top of the car he would not have been injured. He saw fit, however, to sit upon the edge of the car with his legs hanging over the side, and while in that position his foot caught upon the top of the fence as the car passed the cattle-guard and he was thrown from the car. There was ample room for his feet to have passed the fence with his legs hanging over the side of the car had he remained in the posture which he assumed when getting upon the edge of the car, but he shifted his position just as the car reached the fence and threw one foot out from the edge of the car and it came in contact with the fence. The injury took place in the day time and the fence was in plain view from the top of the car, and had the deceased been in the exercise of due care for his own safety it seems clear he would have observed the proximity of the fence to the moving car. It also seems clear that negligence, under the circumstances disclosed by the evidence, ought not to be imputed to the appellant. The statute required it to construct a cattle-guard at that crossing, which included the cattle-guard fences, and if it constructed the cattle-guard fences in such manner that persons riding in or upon its cars could safely pass the same it had performed its duty to the public and to the deceased. When the deceased took a position upon the edge of the car with his legs hanging down the side of the car he 'assumed a position which he was bound to know was a dangerous one, and by reason of that fact the law imposed upon him the duty to exercise a high degree of care to avoid injury by his feet and legs coming in contact with stationary objects along the right of way near the track over which the car upon which he was riding was passing. In the construction of cattle-guards and cattle-guard fences at public highway crossings, to be effective for the purposes for which they are constructed, such fences must approach near to the tracks, and in the construction of such cattle-guards railroad companies ought not to be required to so construct the cattle-guard fences as to render them unavailing, in order that a person riding upon the edge of a flat-car with his legs hanging down the side of the car could, under all circumstances, pass such cattle-guard fences with safety.
It is urged, however, that the appellant having undertaken to carry the deceased upon said flat-car, it was its duty to use reasonable care to transport him in safety. If the appellant undertook to carry the deceased upon the car such would be the law. It appears, however, from the evidence, that the deceased, in company with the other men, was returning on foot upon the right of way from the unloading of cars which they had been directed by their foreman to unload and were overtaken by the flat-car and engine, and by the invitation of the conductor in charge thereof they gpt upon the flat-car. There is no evidence in the record that the conductor was acting within the scope of his employment or was in the performance-of his duty in inviting the men to go upon the car, and if he was not the representative of the appellant in stopping said car and inviting the men to ride thereon then the appellant owed no duty to the deceased, and it cannot be held liable for an injury sustained by him while upon the car. It appears the car was not the one upon which the deceased and the other men were conveyed from the city to their work, and from aught that appears in the evidence the stopping of said car* and inviting the men to ride was purely voluntary on the part of the conductor and beyond the scope of his employment. The deceased did not sustain to the appellant the relation of a passenger being carried for hire, and if the appellant owed the deceased any duty while he was upon said car, it grew out of his right to be carried by the appellant to and from his work while in its employ. That right could only exist by virtue of a contract, and the conductor of the appellant could not make such contract unless he was expressly' authorized so to do, or was acting within the scope of a general authority authorizing him to carry the employees of the appellant to and from their work at the time he stopped the car and invited the men to ride. As there is no proof in the record of express authority to carry these men or of general authority to carry the employees of the appellant to and from their work, no presumption obtains that the conductor in charge of said engine and flat-car had such authority.
From a careful consideration of this record we are of the opinion the appellee failed to make a case, and that the trial court erred in refusing to direct a verdict in favor of the appellant at the close of all the evidence.
The judgments of the Appellate and circuit courts are therefore reversed and the cause is remanded to the circuit court for a new trial.
D , , , , Reversed and remanded.