Unless we are prepared to assert the doctrine that the mere fact that a person is run over by a passing train of cars on a railway entitles the party injured, or his representatives, if killed, to recover damages against the railway company, without regard to the attendant circumstances, the verdict and judgment in the present case cannot he sustained. We have searched the record in vain for proof of negligence on the part of the defendant, or its absence on the part of the plaintiff’s intestate or of those who were chargeable with the duty of exercising due care for him.
The train which caused the Injury was a regular passenger train coming into the city from the north on its usual time, and at a rate of speed, as shown by an overwhelming preponderance of the evidence, not exceeding eight miles an hour. It was coming round a curve, and the bell was kept ringing from the time the train reached the city limits until it arrived at the place of the accident. The child was sitting on the ground by the side of the track, between the switch-rail and the track. Its head was only a few inches above the top of the rail, so as not to be readily discoverable at a distance. As soon as the engineer saw the cli.ld he reversed the engine, applied the air-brakes and blew the alarm whistle. He so far succeeded in stopping the train before it struck the child, as that it ran only ten or twelve feet after the collision. He swears that lie did everything in his power.to stop the train. His testimony on this branch of the case is uucontradicted, and is corroborated by other witnesses. Mr. Lightcap, the agent of the omnibus line, who was on board the cars, testifies that the train was checked so suddenly as to nearly throw him over.
Mor do we think there was any sufficient proof that the men on the engine failed to keep a proper lookout. The testimony of the engineer and fireman is to the effect that they were both on the lookout, the engineer looking on the right side and the fireman on the left side of the engine, their usual standing places. They discovered the child at about the same moment, when the engine was immediately reversed, the brakes applied, and the whistle blown. Had the child been standing on the track, instead of sitting on the ground where it ivas so néarly hidden from view, it is reasonable to suppose it might have been sooner discovered. The engineer swears that when he first noticed something by the track he did not see that, it was a child, but as soon as it was discovered to be a child the air-brakes were applied and the engine reversed. It is true some of the plaintiff’s witnesses testified that the train was running fast, but they do not say how fast, and it is manifest that they were of a class of persons who from want of intelligence, and inexperience in such matters, were not competent to judge as to the rate of speed.
But if it were conceded that the engineer or fireman did not use. the utmost caution, there is no ground for claiming that they were guilty of wanton or willful negligence; while on the other hand, we think gross negligence was imputable to the parents of the child, or to the person in whose charge they voluntarily left him. They were living within a few feet of the railroad track, where trains were passing at all hours of the day, and where young children, unless kept within doors, or if allowed to go out unattended, would almost certainly stray on to the railroad track.
The proof shows, either that the mother left the child in the care of its uncle, or if not in his care, then in the care of no one, and it is immaterial which. If left in the uncle’s care he gave it no attention, and permitted it to go at large; and this, under the circumstances, was culpable negligence. If the mother went away leaving the child in the care of no one, it was equal negligence on her part. The slightest reflection, not less than one’s daily observation, is sufficient to admonish him of the great danger there is in permitting children of tender years to wander unattended in the vicinity of unenclosed railroad tracks, where cars are constantly passing to and fro. Incapable of exercising the discretion which is necessary for their own protection, the law casts upon their parents or guardians the duty of using reasonable care for their safety.
In the case of the T. W. & W. R. R. Co. v. Grable, 88 Ill. 442, the court uses the following language: “ The in i estate was 28 months old, and of course, ivas too young to exercise any care for her personal safety, but its parents, in whose custody the child was, must be charged with the duty of exercising reasonable care for its safety; and if for want of such care the child was killed, it is apprehended there can be no recovery on behalf of the next of kin.”
The same principle is applicable in the case of a child placed in the custody of another by its parents. Thus in T. W. & W. R’y Co. v. Miller, 76 Ill. 278, where the parents of a boy aged about nine years, entrusted him with a neighbor, and the two, while crossing a railroad track in the neighbor’s wagon, were struck by a passing train and the boy was killed, the court says: “Perhaps no great degree of negligence could be imputed to him, but his parents had entrusted him, or at least had suffered him to be in the wagon with Jones on the highway, and if he failed to observe due care for his personal safety, the railroad company are not responsible for the result.” In the light of these principles, we think the evidence was insufficient to warrant a recovery.
It is urged by appellee that the place where the accident happened was in a public street, were greater care is required of a railroad company in the running of its trains than when on its own grounds. While the evidence leaves little room for. doubt that the place were the injury occurred was not on a public street but on the company’s own grounds, yet if it were otherwise, we think the degree of negligence on the part of the parents or the uncle was so great as to preclude a recovery, it not being shown thai; the injury was caused by the wanton or willful negligence of the company’s servants.
As to the point made by appellee, that the train was moving at a greater rate of speed than six miles an hour, contrary to the city ordinance, it is sufficient to say that there is no evidence in the record of the existence of any ordinance. If appellee wished to rely on the ordinance, it was incumbent on. hini to make proof of it and incorporate it in the record. Stevens v. City of Chicago, 48 Ill. 498; L. S. & Mich. Son. R. R. Co. v. Clemens, 5 Brad. 77. It may be further observed that the legislature passed an act in 1877, by which it is provided that no ordinance of any city, town or village, shall limit the rate of speed of any passenger train in such city town or village to less than ten miles per hour. Rev. St. 1880, p. 826.
The plaintiff’s first and second instructions were erroneous, because they exclude the hypothesis of negligence on the part of the uncle. The jury were told by them, in effect, that unless the child or its parents were guilty of negligence the plaintiff would not be prevented from recovering. The evidence tended to show that the child was left in the care of the uncle and, that it was through his inattention and want of care the child strayed away and got on to the track. The instructions were therefore misleading, for if the jury should be of the opinion from the evidence that the mother had used due precaution, they were justified in inferring from the instructions that the plaintiff might recover, however negligent the uncle may have been; and this, as we have seen, is not the law.
Other grounds of reversal were urged which it is unnecessary to consider. Among them was the denial of the defendant’s motion to have the jury re-sworn after the plaintiff had? by leave of the court, amended his declaration in matter of substance, after the evidence was all in. As this is a question of practice arising under the statute, which has not, so far as we are aware, been passed on by the Supreme Court, and as the judgment must be reversed on other grounds as already indicated, we omit the expression of any opinion in relation thereto.
The judgment of the court below is reversed, and the cause remanded.
Reversed and remanded.