It is only necessary to consider a single question presented by the record in the present case.
Section sixty-three of article five of the city charter confers upon the common council the power to regulate the use of streets, to prevent obstructions upon the same, and to pass all ordinances, rules, and make all regulations proper or necessary to carry into effect the powers granted. By article one of chapter four of the revised ordinances of the city, a department of public works is established, including a commissioner of public works, to whom is committed the power to regulate and control the manner of using the streets, alleys, highways and public places of the city. By another ordinance it is provided that no person but a licensed house-mover shall remove any bu. ding within the limits of the city, and he is required to obtain a license therefor from the mayor of the city, and give a bond with conditions as required by the ordinance. Section 1109 provides that * * * “ the said licensed persons shall in each and every instance, before removing any building obtain a permit to do so from the commissioner of public works, and pay to said commissioner a fee of five dollars, whereupon said commissioner shall issue a permit, stating specifically all the conditions prescribing the route to be taken” etc.
The plaintiff on the trial introduced the mayor’s license to Stevens, also the permit of the commissioner of public works, authorizing the removal of the house in question. Among other conditions, and the only one necessary to be referred to, was the fo..owing: “ ISTo right to move the building along or across any railroad track is given, unless the consent of the officers of any such railroad to occupy the track shall be first obtained.” Compliance with this condition was an indispensable prerequisite to the right to cross the defendant’s railroad tracks. The right to cross is expressly withheld unless preceded by the consent of the “ officers ” of the defendant corporation. The insertion of a condition in the permit requiring the consent of the officers of the company, rather than that of a mere ticket agent or other subaltern, was but an act of wise and prudent forethought, for the protection of human life and property. In a large city like Chicago, penetrated to its very center by great lines of railroads, over which trains are constantly passing day and night, the discretion to permit so cumbersome and dangerous an obstruction as a building to cross its tracks, should properly be vested only in those who direct the movements of the company’s trains, and know, or have the means of knowing the exact location of every train at all times, and who also have the requisite authority to hold or move them at their will. A mere ticket agent is in no proper sense an officer of the company. Regulating the movement of trains is foreign to the duties of his employment. It might as well be claimed that a flagman, a track layer, or any other mere employe of the company, could bind the company by their consent in such cases. The commissioner was careful to specify in the permit the class of persons whose consent to the crossing of the track was to be obtained, and Stevens was thus notified to whom it was necessary to apply-
It is urged, however, that Stevens had on previous occasions moved buildings across appellant’s tracks, by the consent alone of Wood, and that the company had, by its acquiescence, held him out as their agent, to express its consent in like cases. If it were conceded that the company con’d properly delegate such authority to any one but its own .officers, or could constitute a ticket agent an officer for such purpose, which, however, we are by no means prepared to admit, it is enough to say that there is no evidence in the record that the company either authorized or even knew that Wood had given permission to Stevens or to any person to move buildings. The proof, and the only proof on that subject, is that Stevens had frequently moved buildings across appellant’s tracks by the consent of Wood. It thus appears that Stevens moved the building in question onto the track without any right so to do, and in violation of the express terms of his permit from the commissioner of public works. Being there in his own wrong, the plaintiff for whom he was acting can not recover., unless the injury inflicted was malicious or willful. This, under the evidence, there is no ground for claiming.
It may be added as a corollary to what has been said, that the plaintiff’s first instruction was improper as not being based on evidence. The instruction was in substance, that if the defendant permitted Wood to hold himself out to the public as having authority to grant permits to people to move buildings across defendant’s tracks, and that Stevens knew that Wood was thus held out by the defendant as having'such authority, and believed that Wood did have such authority, and acted upon it, the defendant was bound by such permit of Wood, whether lie was specially authorized to grant it or not.
For the reasons stated, the judgment is reversed and the "cause remanded to the court below