We deem it unnecessary to. examine the various errors assigned. Under the Iuav and the facts in this case, no recovery for the appellee can be sustained.
It Avas said by Judge McAllister in the case of the C. & N. W. Ry. Co. v. Thorson, 11 Bradwell, 634, “ It seems to be a settled rule of laiv in this State now, that to enable a plaintiff to recover on the ground of mere negligence, as distinguished from the willful tort of the defendant, it must appear that the injured party exercised ordinary care, such as reasonably prudent persons would exercise under like circumstances, to avoid the injury complained of. C. B. & Q. R. R. Co. v. Johnson, Adm’r, 103 Ill. 520-21, and cases there cited. There was no evidence in this case tending to show any willful tort on the part of the appellant, and it is plain that no such tort was relied upon as the basis of the action. The cause of action was predicated upon the mere negligence of the appellant.
We deduce from the foregoing rule of law, that where the gravamen of the action is mere negligence, there can he no recovery where there is a want of ordinary care to avoid the injury. The doctrine of comparative negligence as formulated by the Supreme Court of this State has no application in this case.
Applying this - rule to this case, can it he said that appellee exercised such care as a reasonably prudent person would have exercised under the circumstances to avoid the injury ? It was a dark night; appellee had a lantern which he might and could have used to see that the way he was going was safe, and if' he had used it, might have avoided the injury. It was a want of ordinary care on the part of appellee not to use his lantern to see the condition of the track on which he was going and whether it was safe, and as such would prevent a recovery by him. Even though it should be conceded that the appellant was guilty of negligence, which under the view we take of this case we are not called upon to decide, it was not wanton or willful. In our view, under the foregoing facts, no recovery can he sustained in favor of appellee.
The judgment in this case is reversed.
Judgment reversed.