delivered .the opinion of the court.
The judgment in this case is in accord with the law. The place where the deceased received his injuries was private and not public. It was the exclusive property of the defendant. The railway company held the premises in perpetuity, subject to a condition of defeasance, which condition is common to all railway rights of way, namely, the right to hold and to use the property for railway purposes only.
The defendant was not bound to fence this right of way so as to exclude trespassers. He who goes upon such premises as a mere intruder, or for his own pleasure, takes them as he finds them, with all the dangers that attend their use for railway purposes. Trains may be made up and run without reference to his presence, unless the servants of the company in charge of the train know that he is in a place of danger. The company is not hound- to keep a lookout lest a trespasser or mere licensee be on its track in front of its advancing cars. Its duty is done when its servants refrain from injuring such person wantonly or intentionally. The failure to ring the engine bell, if that was the fact, is not a sufficient reason for holding that the injury was inflicted wilfull); or wantonly.
It is here shown that the deceased was on the track for his own amusement. He was using it as a playground. It is true that the deceased was a child, but he had reached an age when it was his duty to use some care for his personal safety, namely, that care which would ordinarily be used by one of his age, intelligence and experience.
The cars were moved in the usual manner, without great speed, and without the use of excessive force. The brakeman was in his place controlling the motion of the advancing cars.
In Ill. Cent. R. R. Co. v. Eicher, 202 Ill. 556, the deceased was killed while walking in a cinder path between two tracks on an unfenced right of way. He was struck by a train that was running at a higher rate of speed than was permitted by the ordinance. This path was much used by pedestrians for business and for pleasure. The Supreme Court say : “ A railroad company owes no duty to a person walking along its track without its invitation, either express or implied, except to refrain from wantonly or wilfully injuring him, and to use reasonable care to avoid injury to him after he is discovered to be in peril; and it makes no difference in that respect whether he is a trespasser, a mere licensee, or one who is on the tracks by mere sufferance, without objection of the company.” The court also held that the fact the speed of the train was at a prohibited rate constituted negligence merely, which wrould not justify a recovery. Other cases in Illinois sustaining the propositions herein set forth are: I. C. R. R. Co. v. Godfrey, 71 Ill. 500; I. C. R. R. Co. v. Hetherington, 83 Ill. 510; L. S. & M. S. Ry. Co. v. Hart, 87 Ill. 529; Blanchard v. L. S. & M. S. Ry. Co., 126 Ill. 416; Roden v. C. & G. T. Ry. Co., 133 Ill. 72; L. S. & M. S. Ry. Co. v. Bodemer, 139 Ill. 596; I. C. R. R. Co. v. Noble, 142 Ill. 578; Wabash R. R. Co. v. Jones, 163 Ill. 167; L. S. & M. S. Ry. Co. v. Clark, 41 Ill. App. 343; Smith v. C. & E. I. Ry. Co., 99 Ill. App. 296; and N. W. El. Ry. Co. v. O’Malley, 107 Ill. App. 599.
Whether or not the court erred in refusing the request -of the plaintiff, made during the progress of the trial, to "file a second additional count to the declaration, need not here be considered for two reasons : first, no exception was preserved to such ruling; and, second, upon the whole evidence the jury upon any state of the pleadings would not have been justified in finding a verdict for the plaintiff.
However iq.uoh we may be moved by sympathy, we cannot permit that feeling to blind us to the fact that there is nothing in this record from which wilful or wanton negligence upon the part of the defendant can be presumed, or which would sustain a verdict to that effect; and therefore the defendant cannot be called upon to respond in damages in the present action.
The judgment of the Circuit Court is affirmed.
Affirmed.