In effect the jury were told by the court that they might find for the plaintiff, if the injury to him was caused by negligence of the defendant so gross as to amount to a wilful injury. We do not think -that the evidence warranted the giving of such instructions. While the first, as asked by appellant, omitting, as it did, all reference to the comparative negligence of any of the respective parties, ought not to have been given, yet, as modified, it as well as the succeeding instruction authorized a verdict for the plaintiff, notwithstanding he had .never become a passenger upon appellant’s train; and this, under a declaration, each count of which is based upon a distinct allegation or theory that he was a passenger.
The Supreme Court in its opinion, when this case was be: fore it, C., B. & Q. R. R. Co. v. Mehlsack, 131 Ill. 61, speaking of an instruction given at the instance of the plaintiff, say: “ This instruction is clearly erroneous for the reason that it wholly omits the hypothesis that the plaintiff at the time of this injury, was a passenger on the defendant’s train. The plaintiff in his declaration proceeds entirely upon the theory that the legal relation of carrier and passenger had been established between the defendant and him.” The comments of the Supreme Court upon the instruction it was then considering, are equally applicable to the two above mentioned as modified and given by the court upon the last trial.
The only evidence as to the circumstances under which the pile of dirt or stones was placed, where it came in contact with the steps of the car upon which appellee was riding, is that the pile was leveled down so that the foreman thought there- was no danger, and that other cars did safely pass by the same. Such conduct does not show a wilful design to injure, or a reckless disregard of, or indifference to the safety of appellee or any one else; it was at most but a misjudgment; the contact between the pile of earth and. the car was not such that under ordinary circumstances any one would have been injured thereby.
Appellee, according to his own testimony, was riding upon a place not designed for passengers, and where, if there was room for him inside, he ought not to have been.
Mere negligence is but a neglect of duty. C.,B. & Q. R. R. Co. v. Johnson, Adm’r, 103 Ill. 512.
Whether acts constitute negligence, and if so, what is its degree, must be determined by the circumstances and surroundings of each particular case. The negligence shown by the evidence in this case is of a character entirely different from that mentioned in C. & A. R. R. Co. v. Wilson, 63 Ill. 167.
Gross negligence is the want of slight care. Shearman & Bedfield on Negligence, Sec. 49; C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512; I. & G. N. R. R. Co. v. Cooke, 61 Tex. 151-156.
It is sufficient for us to say that in our opinion, in the present action not only was there evidence of at least some care on the part of appellant, but there was an absence of any evidence of any intention to injure appellee, or of any wanton disregard of his safety. The jury ought not, therefore, to have been instructed as if there were evidence of such gross negligence as to amount to a wilful wrong or injury.
For the errors indicated, the judgment of the Superior Court will be reversed and the cause remanded.
Reversed and remanded.
[ Upon petition for rehearing, opinion filed March 21, 18921]
Gaby, J.The appellee’s counsel misapprehended the foregoing opinion. It is the law of this case because so held when in the Supreme Court (131 Ill. 61), that the declaration as it then stood was for neglect by the railroad to discharge the duty which a carrier owes to its passengers. The new count since tiled is the same, with an averment of wilful and wanton neglect. That is not the point of the case. “ In an action on the case it is not necessary to aver gross negligence, but only to aver that the act was negligently and carelessly performed; see 1 Chit. PI. 80; and when the right of recovery depends upon the degree, as for wilful or gross negligence, it is a matter of proof and not of pleading.” Chi., Bur. & Q. R. R. Co. v. Carter, 20 Ill. 391.
But the appellee “ can not sue for the breach of one duty and recover for the breach of another.” Flint & P. Ry. Co. v. Stark, 38 Mich. 714.
The appellant was entitled to the second of the instructions copied in the opinion above, without qualification. If it were true that the conduct of the appellant was such that, though a trespasser, the appellee may recover, yet if he were a trespasser he can not, because of such conduct, recover upon a declaration counting upon the duty of the appellant to him as a passenger.
As it is said above, the instructions as modified “ authorized a verdict for the plaintiff, notwithstanding he has never become a passenger upon appellant’s train; and this under a declaration, each count of which is based upon a distinct allegation or theory, that he was a passenger.”
Therefore the modification was error and the judgment must be reversed and the cause remanded.