delivered the opinion of the court:
Plaintiff in error was on the right of way of defendants in error, attempting to drive his calves to the highway, when he was injured. The calves had reached the right of way as a result of the negligence of defendants in error in failing to provide legal and proper cattle-guards at the crossing. Such negligence, however, cannot be made the basis for recovery by plaintiff in error, as it was not the proximate cause of the injury to him.
Plaintiff in error, under the circumstances, had an implied license to go upon the right of way for the purpose of driving his calves away. While he was upon the right of way the only duty which defendants in error owed to him was to refrain from wantonly or willfully injuring him. It is not averred that the injury was wantonly or willfully inflicted, but it is averred that because of the failure of the defendants in error to ring a bell or sound a whistle, or give some other warning of the approach of the train, plaintiff in error was injured.
Plaintiff in error has argued the case in this court as though his right to recover depended solely upon the question whether or not he was guilty of contributory negligence in going upon the railroad right of way. He quotes," in his argument filed in this court^ from section 97 of Shearman & Redfield on the Law of Negligence, to the effect that in order to defeat a recovery by the plaintiff on the ground that he was trespassing when injured, the trespass must be culpable and not merely technical. This statement of the law is used in discussing whether or not' a trespasser is guilty of contributory negligence. In the same section the following language is found: “Most of the reported cases which appear at first sight inconsistent with this proposition * * * will prove, upon examination, to be cases which turned, not upon contributory negligence, but upon the question whether the defendant owed any duty to persons in the plaintiff’s situation which he had neglected to perform, which is an entirely different matter.”
The question here is, not whether it appears from the declaration that plaintiff in error was guilty of contributory negligence in going upon the right of way, but whether the defendants in error owed to the plaintiff in error the duty of giving warning of the approach of their train by ringing a bell, sounding a whistle or otherwise.
In Williams v. Chicago and Alton Railroad Co. 135 Ill. 491, it was held "that unless the injured person was upon a public highway or was a passenger upon the train, the railroad company owed him no duty to ring a bell or sound a whistle as required by statute, and he could not hold the railroad company liable for a failure to perform the statutory duty, because the company had violated no duty which it owed to him. The same principle was applied in Illinois Central Railroad Co. v. Eicher, 202 Ill. 556, where it was held that the only duty which a railroad company owes to a trespasser or to a licensee is 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.
The declaration in the case at bar does not disclose any violation of duty which the defendants in error owed to plaintiff in-error.' For that reason, and not because it appeared from the declaration that the plaintiff in error was guilty of contributory negligence, the demurrer was properly sustained.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.