delivered the opinion of the court.
The act of the General Assembly incorporating the Alton & Sangamon Bailroad, the predecessor of appellant, provides that whenever it shall be necessary in the construction of said railroad to cross any road or highway, it shall be lawful to do so, provided the corporation shall restore the road or highway thus intersected to its former state, or in a sufficient manner not to have impaired its usefulness. In the absence of such or any express provision in its' charter, appellant was under obligation to leave every highway that it crosses, and the approaches thereto, in a safe condition for the use of the public. The People ex rel. the City of Bloomington v. Chicago & Alton R. R. Co., 67 Ill. 118.
By approaches to a highway is meant whatever material construction at the sides thereof furnishes a passage or way by which to reach the highway itself; i. e., embankments, grades or structures on either side of a railroad, at the crossing, which serve as a passage way for approaching the crossing, are approaches. .The City of Bloomington v. Ill. Cent. R. R. Co., 154 Ill. 544.
The declaration of appellee does not set forth merely that appellant suffered the approaches to said crossing to be out of order, but the approach to said crossing within the right of way of appellant; and declares that the injury to Jennie Calvin happened because one of the planks with which the east approach to said crossing, and within the right of way of said appellant, was constructed, was out of order.
"Upon the trial appellee called attention to the following section of the statute, being section 8 of an act of 187J, entitled, “ An act in relation to fencing and operating railroads,” which is as follows :
“ Section B. Hereafter at all of the railroad highways and streets in this State the several railroad corporations in this State shall construct and maintain said crossings and the approaches thereto within their respective right of way so that at all times they shall be safe as to persons and property.”
The declaration of appellee seems to have been prepared with reference to such statute.
At the trial it appeared that some years prior to the accident, and near the place thereof, appellant, at the instance of a Mr. Henry, had constructed a spur-track for the accommodation of a coal-yard operated by said Henry; that the cost of such construction had been billed to said Henry, but that for some years prior to the accident said spur-track had not been used, and it had been disconnected from any track belonging to appellant; so that at the time of the accident there was existing merely what had been a portion of a spur-track connecting with appellant’s main track; namely, there remained, fastened to the ties imbedded in the earth, certain iron tracks having no connection with either the main or side tracks of any railroad. The accident, it appeared, did not happen upon an approach to any track or crossing of appellant, but outside the right of way of appellant. If the accident happened upon an approach to a railroad crossing the evidence shows that it was an approach to the spur or Henry track crossing, which has never been used by appellant, was put in for the accommodation of Henry, the cost of the same charged to him, and the track disconnected from appellant’s tracks long prior to the accident. The evidence did not show that appellant’s right of way included any portion of the space occupied by his spur-track. The place at which Jennie Calvin was injured appears from'the evidence to have been a portion of Yan Burén street, not upon a construction raising or an elevation or change of. the highway carrying it over a railroad crossing. The judgment of the Circuit Court is reversed.
Hr. Justice Dibell, having presided at the trial of this case, took no part in its decision in this court.
Finding of Facts to be incorporated in the judgment :
The court finds that Jennie Calvin was not injured upon an approach to the crossing of appellant’s railroad over Yan Burén street in the city of Joliet, nor within the right of way of the railroad of appellant in said city.