text:
    E. W. Stubbs, Appellant, v. City of Aurora et al., Appellees.
    Gen. No. 5441.
    1. Local improvements—effect of records of board where award of contract questioned. In a proceeding to enjoin tbe award of a contract for a local improvement upon tbe ground that tbe board is about to let sucb contract to one other than the lowest bidder, while the board is bound by its own records yet such records do not bar the right to show that the board in awarding the contract acted fraudulently or from unlawful or improper motives, but in passing upon the action taken by the board its members are to be judged not by what the proofs may show the facts to be but by the situation as it then honestly appeared to them.
    2. Local improvements—power of board to reject lowest bid. If after an honest and careful investigation the board of local improvements is convinced that it is not for the public good to award the contract under consideration to the lowest bidder, it has full power to reject such bid.
    3. Local improvements—term, “responsible bidder” defined. The term “responsible bidder” includes more than mere financial responsibility, comprehending as well ability to discharge the obligations of the proposed contract in accordance with what might be expected and demanded thereunder.
    4. Mandamus—when relief will not be awarded. Neither in equity nor at law in mandamus will the court in the absence of fraud interfere with the exercise of the discretionary power vested in a board of local improvements.
    5. Chancery—when mil not grant relief to taxpayer. Chancery will not extend relief to a taxpayer when it is shown that the action is not brought in good faith for the protection of his own interests but that he is merely a colorable plaintiff suing in behalf of other parties in interest.
    6. Dismissal—when proper in chancery. When it appears that the real complainant is suing for the benefit of another who would have no standing a dismissal should be awarded in chancery notwithstanding an otherwise meritorious cause of action.
    Bill in equity. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1910.
    Affirmed.
    Opinion filed March 16, 1911.
    Sears & Solfisburg and Gann, Peaks & Townley, for appellant.

      Charles F. Clyne and J. C. Murphy, for appellees.
   Mr. Justice Dibell

delivered the opinion of the court.

Sections 77 and 78 of the Act of 1907, concerning Local Improvements, are in part as follows:

“Sec. 77. Said board of local improvements may reject any and all proposals or bids, should they deem it best for the public good; and if they shall be of the opinion that a combination exists between contractors, either to limit the number of bidders or to increase the contract price, and that the lowest bid is made in pursuance thereof it shall be their duty to do so; and said board may reject the bid of any party who has been delinquent or unfaithful in any former contract with the municipality, and shall reject all proposals or bids other than the lowest regular proposal or bid of any responsible bidder, and may award the contract for said work or improvement to the lowest responsible bidder at the prices named in his bid, which award shall be recorded in the record of its proceedings. Such award, if any, shall be made within twenty days after the time fixed for receiving bids. If no award be made within said time, another advertisement for proposals or bids for the performance of the work, as in the first instance, shall be made, and thereafter (the board shall) proceed in the manner above in this act provided; and such readvertisement shall be deemed a rejection of all former bids, * * * “Sec. 78. Any owner or person interested in any of the property assessed and any bidder shall be entitled to a hearing before said board on any question connected with any such award.”

The city of Aurora acting under this statute, adopted two ordinances, one for improving State street within certain boundaries with asphalt pavement and combined curb and gutter, and the other for the like improvement of North avenue within certain boundaries. The Board of Local Improvements advertised for and received bids for said improvements. For the improving of State street the Standard Paving Company, hereinafter called the Standard Company, hid $14,873.98, and the McCarthy Improvement Company, hereinafter called the McCarthy Company, bid $15,563.39. For the improvement of North avenne, the Standard Company bid $17,625.18 and the McCarthy Company bid $18,039.26. In other words the Standard Company bid $689.40 below the McCarthy Company on State street and $414.08 on North avenne. The bids were received at a meeting of the board held on Jnne 6, 1910, and the record of the board shows that it adjourned for consideration and investigation of bids, to convene at the call of the president. The record of the board shows it next held a meeting on June 8, at which representatives of the Standard Company were present and made arguments showing why the Standard Company should be awarded these contracts. The meeting then adjourned to June 9. The record of the meeting of June 9 shows that a petition was presented from property owners on State street, representing 430 feet in excess of a majority of the frontage, and a petition from property owners on North avenue representing 270 feet in excess of a majority of the frontage, which petitions requested the board to award the contracts to the McCarthy Company rather than to the Standard Company; and that two attorneys appeared representing the Standard Company, one of whom claimed to also represent some 200 feet of property on State street and some 1,200 feet of property on North avenue, and protested against the letting of the contracts to other than the lowest bidder; and that the meeting adjourned subject to the call of the president. The record of the board shows that on June 10, the board unanimously adopted a resolution letting each of these contracts to the McCarthy Company. The resolution as to State street was as follows:

“Resolved, that we, the Board of Local Improvements, find the McCarthy Improvement Company to be tbe lowest responsible bidder for tbe improvement of tbe roadway on State Street, between Benton Street and Claim Street, in accordance witb an ordinance numbered 1155, passed by tbe City Council of tbe City of Aurora, February 21st, A. D. 1910, and approved February 23rd, 1910. We further find that it is for tbe best public good that tbe proposal of tbe Standard Paving Company, for said improvement, be rejected. be it further resolved, That tbe contract for constructing said improvement be and it is hereby awarded to said McCarthy Improvement Company, at tbe prices named in its bid therefor, and that notice of this award be published for two days in tbe Aurora Daily Beacon, a daily newspaper published and circulated in tbe city of Aurora.”

Tbe resolution as to North Avenue was in similar terms.

On June 22, 1910, a bill in equity in tbe name of E. W. Stubbs was filed against tbe city and its officers and tbe Board of Local Improvements and tbe McCarthy Company to enjoin the letting of tbe contract for tbe improvement of State street to tbe McCarthy Company. On July 28, 1910, an amended bill was filed in said cause. It alleged that Stubbs was a citizen and taxpayer of tbe city of Aurora and tbe owner of 149 feet frontage on State street within tbe limits of said improvement; alleged tbe adoption of tbe said ordinance as to State street, tbe advertising for bids, tbe bids of tbe Standard Company and of tbe McCarthy Company; charged that tbe Standard Company was solvent and responsible and that its agents bad tbe requisite skill to construct an asphalt pavement in accordance witb said ordinance and that it intended to do tbe work with materials of tbe best quality and of tbe kind specified in tbe ordinance, if it obtained tbe contract; that it offered to prove to tbe board its ability to perform tbe contract; that tbe board at one of said meetings announced that it was satisfied that tbe Standard Company was responsible and bad tbe necessary skill to do tbe work and that tbe materials with which it proposed to do' the work were of the best quality and conformed to the specifications; but that the board, unlawfully intending to favor the McCarthy Company at the expense of the property owners, awarded the contract to the McCarthy Company at its bid; that the board announced as a reason for said award that if the contract was awarded to the Standard Company, it intended to purchase asphalt for said pavement from the Barber Asphalt Paving Company, which the board denominated the “Paving Trust;” that the board actuated solely by prejudice against said Barber Company, announced that it would not permit any materials contributed or sold by the Barber Company to be used on the streets of Aurora, and that this decision by the Board did not purport to be based on any belief that such materials were inferior or did not conform to the specifications, but the board admitted that such materials did conform to the specifications and were of the best quality. The bill alleged that the asphalt sold by the Barber Company was the particular asphalt referred to in the ordinance and its specifications. The bill also alleged that the board did not in good faith determine that the McCarthy Company was the lowest responsible bidder, but the award to it was wholly arbitrary and was actuated solely by prejudice against the Barber Company and a desire to favor the McCarthy Company as against the Standard Company. The prayer was that the city and the McCarthy Company be enjoined from entering into such contract; that the McCarthy Company be enjoined from making the improvement; that the city engineer, city collector, and city treasurer be enjoined from certifying and paying the McCarthy Company for the work; and that all further proceedings under the award be enjoined. On the same day that the amended bill was filed, each of the defendants ánswered, in which answer among other things the allegations of the amended bill as to the motives governing the board in awarding the contract to the McCarthy Company were fully denied. The answer alleged that the board fully investigated all matters in connection with the awarding of the contract; that the hoard investigated as fully as its members were able to do the character, standing and financial responsibility of the two bidders, the character of the work which each had theretofore done and the promptness with which it had been done, and the opinion of the people of the city and of the abutting property owners who were to pay for the improvement; that they made their investigations honestly, fairly and conscientiously, without any desire unjustly to favor either bidder, hut with the sole object of best serving the people of the city and those owning property along the line of the improvement. The answer further alleged that although, during said investigation, they became informed that the Standard Company bought its asphalt from the Barber Company and that the latter was a part of the paving trust and that the awarding of the contract to the Standard Company would cause the use of the trust product, yet said facts were not the things which controlled the board in awarding the contract, hut were only some of many minor circumstances considered by the board. The answer alleged that the hoard awarded the contract to the McCarthy Company after a complete investigation of all the facts and circumstances and acted upon the best judgment of each member of the hoard, without any feelings of favoritism or hostility to each bidder; that the hoard deemed it for the best public good that the hid of the Standard Company he rejected, and that the hoard was of opinion that the hid of the McCarthy Company was the lowest responsible hid. The answer also alleged that after making said award the hoard entered into a contract with the McCarthy Company for the construction of said improvement and that said contract is in full force.

On the same day that this original hill was filed Lonis Joubert, the owner of a lot fronting on North avenue within the limits of the improvement on that street, also filed a bill to enjoin the letting of the contract to the McCarthy Company for the improvement of North avenue. On the same day in which the amended bill and answer thereto in the Stubbs case were filed, both cases were tried together before the chancellor, and he found the equities with the defendants in the Stubbs case and dismissed that bill for want of equity, and this is an appeal by Stubbs therefrom. Counsel state that a like decree was entered in the Joubert case, but it has not been appealed. Joubert and Stubbs were witnesses, and the evidence of both is in the record before us, but, it having been stipulated that all the testimony referred to both cases except that of the complainants, the appellant did not insert the evidence of Joubert in his abstract and appellees have embodied it in an additional abstract.

Appellees contend that the action of a municipal body like the board of local improvements can only be shown by its record, and that, as the record here made shows that the board found that the McCarthy Company was the lowest responsible bidder and that it was for the public good that the bid of the Standard Company be rejected, that conclusion cannot be disputed by oral testimony. While the board is no doubt bound by its own records and the rule contended for is applicable in a proper case, we are of opinion that if the board acted fraudulently or from unlawful and improper motives, it could not screen itself from judicial investigation by any record which it might prepare. The rule contended for would enable any municipality to bar all investigation into its fraudulent and unlawful acts.

In passing upon this action by the board its members are to be judged, not by what the proofs may show the facts to be, but by the situation as it then honestly appeared to them. They caused Dun or Bradstreet to be examined, and found that tbe capital stock of tbe Standard Company was only $20,000 while tbe aggregate of its bids on these two improvements was about $32,500. It found that tbe capital stock of tbe McCarthy Company was much larger. Tbe Standard Company have never done any work in tbe city of Aurora. Tbe McCarthy Company bad done much work there. They were informed that in other places tbe work of tbe Standard Company bad not been satisfactory. Tbe work of tbe McCarthy Company in Aurora bad been very satisfactory. A number of circumstances combined to cause them to believe, and they undoubtedly did believe, that tbe Barber Company was back of tbe Standard Company or else that this was really tbe bid of tbe Barber Company. At tbe time of making a previous street improvement in Aurora, one Ellis, as an agent of tbe Barber Company, bad visited Aurora, bad approached tbe members of tbe board in a way which caused them to distrust bis motives, bad obtained all tbe necessary details for preparing a bid, bad stated that tbe Barber Company would bid, and then tbe Barber Company did not bid but instead a bid was made by tbe Standard Company. Before tbe bids were received for tbe improvements now in question, Ellis bad again visited Aurora and bad professed to be acting for tbe Standard Company. At tbe first meeting of tbe board on these improvements when representatives of tbe Standard Company were present at tbe meeting, tbe mem-' bers of tbe board inquired about Ellis and were told by tbe representatives of tbe Standard Company there present that they knew nothing about Ellis and that be did not represent tbe Standard Company. At tbe second meeting of tbe board they again made inquiries about tbe relations between Ellis and tbe Standard Company or tbe Barber Company, and tbe representatives of tbe Standard Company exhibited much displeasure at tbe inquiry. Tbe members of tbe board bad learned that tbe work of tbe Barber Company elsewhere had not been satisfactory, and that its work was done very slowly and that other municipalities had had difficulty with the Barber- Company under contracts let to it for street improvements. They learned from these representatives of the Standard Company that said company was buying its materials from the Barber Company. At the trial of this case it was testified that the Standard Company bought about one-half of its materials from the Barber Company, but also that at that time they were buying all their asphalt from the Barber Company. The work done by the McCarthy Company in Aurora had been done rapidly so that the cross streets and the individual lots were only blocked for a short space of time. It is clear that the commissioners believed that if the asphalt trust, through the Barber Company or the Standard Company, obtained a foothold in Aurora and drove out the local competition of the McCarthy Company, which latter had its principal office in that county, the cost of future improvements would be materially increased. They took pains to ascertain the sentiment of the citizens and especially of the owners of the property along the line of the two improvements. They found the general sentiment was in favor of letting the contract to the McCarthy Company, although its figures were slightly higher than those of the non-resident Standard Company. The owners of a majority of the frontage on each of the streets petitioned the board to let the contract to the McCarthy Company. The paper which one of the attorneys for the Standard Company presented at the meeting on June 9 showed six or seven signatures of State street owners and one or two signatures of North avenue owners. Each member of the board testified that he did not act through favoritism to the McCarthy Company nor because the Standard Company was believed to be a member of the asphalt trust, but because he believed that the McCarthy Company was the more responsible bidder and because he believed it was for the public good that the contract should he let to the McCarthy Company rather than to the Standard Company. We are constrained to believe from the evidence that the members intended to discharge their duty faithfully and to act for the public good and that it honestly appeared to them at the time that the public would be much better served by rejecting the bid of the Standard Company and by letting the contract to the McCarthy Company. They had full power under the statute above quoted to reject the bid of the Standard Company, if they honestly believed that such action was for the public good. We cannot say that they were guilty of fraud or favoritism in rejecting the bid of the Standard Company.

When we have determined that the court below was warranted in finding from the evidence that the members of the board of local improvements were not guilty of fraud, we have substantially disposed of the authority of a court of equity to interfere in this case. It is worthy of note that most of the cases relied upon by appellant were actions of mandamus; but even in mandamus, the court has no power to interfere with the discretion reposed by law in such a body, in the absence of fraud. In People v. Kent, 160 Ill. 655, the bid of the Barber Company was accepted, although it was $3,536 higher than that of another asphalt company. It was there held that the term “responsible bidder” in a similar statute included more than mere financial responsibility and, in such a case, included the ability to discharge the obligations of the proposed contract in accordance with what might be expected or demanded thereunder, for, otherwise, the giving of a bond for the performance of the contract would make every bidder a responsible bidder. It was there said: “It appears that the defendant, after investigating the records made by the relator in doing similar work before, and the other matters referred to in his answer, determined that the relator was not the lowest responsible bidder. He was vested with the exercise of official judgment and discretion, with which, in the absence of fraud, courts have no right to interfere. (Kelly v. City of Chicago, 62 Ill. 279; People ex rel. v. Dental Examiners, 110 Ill. 180; People ex rel. v. Mayor, 25 Wend. 680; People ex rel. v. Council of Troy, 78 N. Y. 33.) In this case there was neither favoritism nor fraud as a matter of fact, and none is to be inferred as a matter of law.” Johnson v. Sanitary District, 163 Ill. 285, was a suit in equity, where the Sanitary District had rejected the^lowest bidder and had let the contract to one who bid over $145,000 more, and the bill sought a mandatory injunction to compel the awarding of the contract to the complainants, who were the lowest bidders and who were also taxpayers and legal voters of the District. The court said: “The board having reserved to itself the right to pass upon the evidence of the pecuniary resources and ability to do the work, and being, under the act, vested with the power to determine' the lowest responsible bidder, it is by the act made the judge to determine the qualifications of the bidders. When the statute vests a discretion in a municipal body to determine a question, it is not the province of the courts to determine and control that discretion. The mandatory injunction applied for to compel the letting of the contract to appellants is in the nature of a mandamus, and is an attempt to control a discretion that is judicial in its nature. The duty of examining the proposals, determining the responsibility and awarding the contract is judicial in its nature and character, and the awarding the contract is a judicial act, which is not within the province of the courts to control by mandamus or mandatory injunction. (East River Gras Light Co. v. Donnelly, 93 N. Y. 55; People ex rel. v. Gleason, 121 N. Y. 631; Erving v. Mayor, 131 N. Y. 133; State ex rel. v. McGrath, 91 Mo. 386; State ex rel. v. Shelby Co., 36 Ohio 326; Douglas v. Commonwealth, ex rel., 108 Pa. St. 559; Hoole v. Kinkead, 16 Nev. 217.) Nor can the courts, in the absence of fraud, restrain the trustees from entering into such contract as they may award to the bidder.”

In Kelly v. City of Chicago, 62 Ill. 279, the lowest bidder refused to take the contract. The board of public works rejected the next lowest bidder and awarded the contract to a party bidding $4,218 higher, and the court refused to interfere with the discretion of the board, no fraud being shown.

But if, under the statute, this board, after rejecting the bid of the Standard Company, should have re-advertised for bids, still another reason appears why the court properly dismissed this bill. Stubbs was called as a witness to prove that he owned property abutting upon the State street improvement and that he signed the bill and amended bill. The description of his property in the bill shows that he owns a frontage of 149 feet. The State street improvement was about a mile long and there was frontage on both sides of the street. The exact amount by which his assessment would be increased by the acceptance of the bid of the McCarthy Company instead of the Standard Company is not shown, but if the benefits to and assessment against his lot averaged with the other lots abutting on the improvement, the increase in his assessment would apparently be less than $10. The slightness of his financial interest caused his cross-examiner to inquire how he came to bring this suit. Stubbs was a man of education and intelligence, and he sought to maintain the position that he had instituted the suit, but the reading of his entire evidence in the record shows that an attorney of the Standard Company got permission to use his name as the complainant in this suit in order, as he understood it, to compel the letting of the contract to the Standard Company upon the promise to him that the suit should cost him nothing. Though he read the bill or had it read, it is clear that he had no adequate understanding of the legal effect of the suit. That this litigation is conducted, not by taxpayers but by the Standard Company, was made still more evident by tbe testimony of Joubert, who was not as intelligent as Stubbs, and from whose entire examination, read at large in the record, it is made ■entirely manifest that these are not suits by taxpayers, brought by them in good faith for their own benefit, but that they permitted the use of their names upon a promise that the litigation should cost them nothing; and in Joubert’s case, it is evident that he expects some compensation or favor for permission to use his name. Appellant earnestly insists that we should not consider the evidence of Joubert because of the stipulation that the testimony refers to both cases, except the testimony of complainants; but appellants called Joubert as a witness, and put his testimony in their certificate of evidence, and it is a part of what was before the court below, and we do not doubt the propriety of considering it in determining who is the real complainant litigating these cases. From all the evidence there can be no doubt that the Standard Company is the real party complainant, and that no suits would have been instigated except for its promise to pay the costs and furnish the attorneys. Equity will not extend relief to a taxpayer when it is shown that the action is not brought in good faith for the protection of his own interests, but that he is merely a color-able plaintiff suing in behalf of other parties in interest. 2 High on Injunctions, 4th Ed., sec. 1302; Commissioners v. Deboe, 43 Ill. App. 25. In the case entitled In re Burdick, 162 Ill. 48, it is held that while a collusive suit is pending the court will, at the suggestion of a party to the record or of a person in interest who may be prejudiced by the judgment, or of an amicus curiae; or upon its own motion, dismiss the suit out of court. In People v. General Electric Railway Company, 172 Ill. 129, it was held that one who cannot maintain a bill for an injunction will not be allowed to accomplish his purpose indirectly or by an information in chancery in the name of the attorney-general, and that equity may go behind the nominal parties to the record in a proceeding for an injunction to discover the real parties in interest. To the same effect is Watson v. Le Grand Roller Skating Rink Company, 177 Ill. 203. It is not contended by appellant that the Standard Company could have maintained this suit in equity in its own name, and several of the authorities above cited show indirectly that it could not. Under certain circumstances a taxpayer could maintain such a suit. When the court below discovered that the Standard Company was the real actor in this suit, brought under cover of a taxpayer whom it had induced to permit the use of his name by a promise to the taxpayer that it should be without expense to him, it was proper for the court to dismiss the suit, even if fraud by appellees had been shown.

The decree is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: Mr. Justice Dibell

license: Public Domain

text:
    Elgin City Banking Company, Administrator de bonis non, Appellee, v. Chicago, Milwaukee & St. Paul Railway Company, Appellant.
    Gen. No. 5286.
    1. Instructions—what waives motion for peremptory. Subsequent introduction of evidence waives a motion for a peremptory instruction.
    3. Instructions—how motion for peremptory must be made. Written instructions must accompany motions to instruct as to an entire declaration, also as to separate counts where separate motions are made with respect to each count.
    3. Instructions—effect of refusal of peremptory. The refusal of an instruction to find the defendant not guilty raises the question whether there was evidence fairly tending to show a cause of action for the plaintiff under some count of the declaration.
    4. Instructions—what proper upon right of recovery. Instructions are proper which authorize a recovery if the plaintiff has proved his ease as alleged in his declaration or some count thereof.
    5. Negligence—non-obedience of ordinance. The failure to ring a bell as required by ordinance if the proximate cause of the injury to an employe, constitutes actionable negligence.
    6. Negligence—what constitutes wanton. Held, under the evidence, that the jury might properly find that the servants in charge of a locomotive engine who saw the perilous position of the plaintiff’s intestate and who did nothing to warn him of his danger, were guilty of negligence wanton and wilful in character.
    7. Contributory negligence—reliance upon obedience of ordinance. A servant is entitled to rely on obedience by his master of an ordinance to the protection of which he is entitled.
    8. Master and servant—what rislcs not assumed. An employe does not assume the risk of his employer’s negligence, nor does he assume the risk of being injured by the negligence of other servants of his employer who are not his fellow-servants.
    9. Master and servant—what not an assumed risk. A section hand working in railroad yards does not assume the risk of injury resulting from disobedience of an ordinance and the switching of cars thereunder in a negligent manner in the absence of evidence showing that it was customary to disobey such ordinance and to-do the switching in the negligent manner which caused the injury.
    10. Ordinances—when provision not repealed. A provision of an ordinance is not repealed by a subsequent ordinance containing the same provision.
    11. Ordinances—effect of repeal upon existing rights. The repeal of an ordinance is ineffective as to any act done or any right accrued or any claim arising under the former law.
    12. Ordinances—effect of, requiring ringing of bell. If an injury results from failure to ring a bell a cause of action is not conferred by an ordinance requiring the ringing but the ordinance and its disobedience tend to establish a cause of action.
    Action in case for death caused by alleged wrongful act. Appeal from the Circuit Court of Kane county; the Hon. Duane J. Carnes, Judge, presiding. Heard in this court at the October term, 1910. Certiorari denied by Supreme Court (making opinion final).
    Affirmed.
    Opinion filed April 6, 1911.
    John A. Russell, for appellant.
    Roy R. Phillips, for appellee; Walter E. Healy and G. R. Beverly, of counsel.
   Mr. Justice Dibell

delivered the opinion of the court.

On January 7,1907, “William Olhaber, while at work as a section hand for appellant, was struck by a moving freight ear of appellant, knocked down, run over and killed. He left a widow and four small children who were supported by him. The administrator of his estate brought this suit against appellant to recover damages for the pecuniary injuries resulting to the widow and next of kin from his death. Plaintiff had a verdict for $1,750 and judgment thereon, from which defendant below prosecutes this appeal. We affirmed the judgment and afterwards granted a rehearing on account of the very earnest insistence of appellant that we had misapprehended the evidence.

Each count of the declaration charged the operation of the car, the location of the tracks, the employment of deceased as section man, and that he was in the exercise of due care, and that the servants of appellant in charge of the engine and cars by which he was injured were not his fellow-servants, and that he left a widow and children who were injured by his death. The first count charged that appellant’s servants in charge of the engine and cars in question negligently, improperly and wrongfully operated, managed and drove said locomotive and cars, thereby causing Olhaber’s death. The second count charged that the same servants negligently, wilfully and wantonly operated, managed and drove said locomotive and cars, and thereby caused Olhaber’s death. The third count charged that Olhaber was proceeding in a northerly direction in a switch yard, in the performance of his duties as section man, and that such other servants of appellant in charge of said engine and cars were driving said engine and cars in a northerly direction, and negligently failed to give Olhaber any warning of the approach of said engine and cars, thereby causing his death. The fourth count alleged an ordinance of the city of Elgin requiring the bell of each locomotive engine to be rung continually while such engine was running in the city, and that the servants in charge of said engine and cars negligently failed to ring said bell, thereby cansing Olhaber’s death. The fifth count charged that the cars were being pushed northerly by said engine located at the south end thereof, and that appellant wrongfully failed to have any brakeman or other person - stationed upon the northerly car, but pushed said cars north without any person in charge thereof, and thereby caused the death of Olhaber. The sixth count charged that these were freight cars, that the engine was south of them and pushing them north, and that Olhaber was also going northerly in the yard, and that appellant negligently failed to have a brakeman stationed on the northerly car, and that the brakes on said cars were not operated by any power applied from the locomotive engine, and that said car was wrongfully pushed in said northerly direction without any person in charge thereof, and thereby Olhaber was killed.

At the close of appellee’s evidence appellant moved the court to exclude the evidence and to direct a verdict for defendant, and requested the court to instruct the jury “We, the jury, find the defendant not guilty.” This was denied, and an exception preserved. Thereafter appellant made a like motion as to each count of the declaration separately, but did not offer a written instruction addressed to each separate count. These motions were denied, and exceptions preserved. Thereafter appellant offered evidence in its behalf. It thereby waived said exceptions. It renewed these motions at the close of all the evidence, and again tendered an instruction to find the defendant not guilty. The separate motions then made as to each count of the declaration were not accompanied by any written instruction concerning such count of the declaration, and were therefore properly denied. On the hearing of these motions at the close of all the evidence the appellee became entitled to the benefit of the proof introducd by the appellant. Langan v. Enos Eire Escape Co., 233 Ill. 308; Goldie v. Werner, 151 Ill. 551; Ames & Frost Co. v. Strachurski, 145 Ill. 192. The refusal of the instruction to find the defendant not guilty raises the question whether there was evidence fairly tending to show a cause of action for appellee under some count of the declaration. Appellant contends that it was not negligent; that deceased was not exercising due care but was guilty of contributory negligence, and that deceased assumed the risk of the conditions which caused his death.

The general course of appellant’s railroad through the country is east and west, and therefore the tracks are called east bound and west bound, and the railroad men frequently call the directions east and west. But at' the place where the accident occurred the direction of the railroad was north and south. These yards were inside of the city of Elgin, and on the west side of the Fox river. The so-called west bound track was immediately adjoining the Fox river, and trains regularly ran north thereon. The third track west of the river was the east bound main track, on which trains regularly ran in a southerly direction at that point. Between those two tracks was a passing track, with switches connecting with each of the other tracks, so that a train coming from either direction could go upon the passing track to permit another train coming from behind it in the same direction to pass. West of the east bound main track was a short tool house stub track, entered from its south end, and a tool house west of it. North of the stub end of the tool house track was a switch leading north whereby cars could pass west from the west bound main onto other tracks, and then another switch near a high board fence by which cars coming over that switch could be thrown upon a certain scale track or upon another track still further west. A freight train came from the south on the west bound main and backed over onto the passing tracks, and thereafter another freight train came from the south on the west bound main, and a passenger train, west bound, was about due, and it became necessary for the first freight train, which was number 93, to leave the passing track for a track further west in order that this second west bound freight might occupy the passing track. To accomplish this the engine of train number 93 passed around train number 93 and came upon the passing track south of that train and hitched onto the caboose at the rear of the train, and then went south, pulling the caboose and eleven freight cars over the cross-over and onto the east bound track. It was then pushed north to the switch north of the tool house, which was set so as to enable it to run in upon the switch tracks west of the east bound main. McNirney was the section foreman and Olhaber and Lamp were section men under McNirney. About 2:20 or 2:30 in the afternoon of the day in question McNirney and his men were to go north to do certain repairing. They went to the tool house, secured the necessary tools and materials, and started north along the west side of the tracks. Mc-Nirney carried a pail of spikes and a spike maul, and Olhaber some rail braces. After they had proceeded north a short distance McNirney sent Lamp back to the tool house to get a certain chisel, and Lamp went back and went into the tool house. McNirney and Olhaber walked along a path just west of the track upon which train 93 was shoved north. At the place where the switch stand was to throw the cars onto the scale track or to the track west of it, the distance between the high board fence and the west rail of the track was 7.4 feet. The freight cars projected west beyond the rail 2.7 feet, so that there was a space between the freight car and the board fence of 4.7 feet. A person passing along could go either side of the switch, but the switch was rather nearer the fence and the traveled path seemed to lead between the track and the switch stand. McNirney and Olhaber had walked side by side until they approached this switch, ■when it became necessary for Olbaber to drop behind McNirney. Jnst as they were about at the switch appellant contends that Olhaber started across the track. Olhaber and McNirney were both struck by the north freight car. McNirney was knocked against the fence. Olhaber was knocked down upon the track, and he went under the train and both of his feet were cut off. McNirney sprang to his feet, saw Olhaber under the train, and gave signals to stop the train. These were communicated by the fireman, on that side of the engine, to the engineer, and the train was stopped after several cars had passed over Olhaber. The latter was then taken out from under the train, and died in a few minutes.

Several items of proof are to be considered in determining whether appellant was negligent. The engine was at the south end of a string of twelve cars; or, in other words, was more than twenty-five rods back of the front end. The air brake apparatus on these cars was not attached to the engine, and could not be used to suddenly stop the train. When the train, first began the movement north, after having passed to the south to go upon the east bound track, a brakeman was on top of one of the cars, and he saw McNirney and Olhaber along by the side of the track along which it was intended to send these cars. He soon after got off to adjust certain switches for the other freight train, and from that time on no man was on the top of this cut of cars. The engineer was on the east side of the engine and could not see the west side of the track over which he was to pass, and did not see these men. One brakeman was on the platform of the caboose at the rear of the train. The conductor was several hundred feet away attending to other duties. When Lamp came out of the tool house Olhaber had been run over, and McNirney had regained his feet and was waiving his arms as a signal to stop. Lamp testified that at that time the train was going ten miles per hour. The engineer testified that its speed was about six miles per bour; tbe fireman tbat its speed was five or six miles an bour. Tbe brakeman wbo was last upon the train testified tbat its speed was six or seven miles per bour; another brakeman tbat be thought tbe speed was not over six or seven miles per hour; tbe conductor, wbo was not present, thought its speed was four or five miles per bour; but it was proved tbat be bad said in tbe presence of others tbat it was going seven or eight miles an bour, and maybe faster. Under these circumstances it was a fair question for the jury whether tbe speed of this train at tbat point was not negligent in view of tbe fact tbat tbe fireman and one brakeman knew of tbe position of Mc-Nirney and Olbaber, and knew tbat they appeared to be unconscious of tbe approaching cars. Tbe ordinance of tbe city required tbe bell to be constantly ringing while tbe engine was in motion. Lamp testified tbat when be came out of tbe tool bouse tbe engine bad nearly reached him, and tbat tbe bell was not ringing. Tbe fireman testified positively tbat it was ringing. One brakeman testified tbat it was ringing when they started north, but be did not know whether it was ringing after tbat. Tbe other two brakemen did not know whether it was ringing. Tbe engineer testified tbat it was ringing, but be admitted tbat in a conversation thereafter with one Beverly be stated tbat be bad no distinct remembrance whether tbe bell was ringing or not; tbat it was not customary to ring tbe bell in tbe yards, and tbat probably it was not ringing. Tbe conduct of McNirney and Olbaber indicates that they did not bear tbe bell, because if they bad beard it behind them tbe instinct of self-preservation would naturally have caused them to look back or to withdraw further from tbe track. Under all these circumstances it was a fair question for tbe jury whether the bell was ringing or not. If it was not ringing, then appellant was guilty of negligence in failing to obey tbat ordinance of tbe city. After the train started north and tbe bead brakeman bad left tbe train and the engineer was where he conld not see the west side of the track, the fireman was the one person who could see and did see McNirney and Olhaber. He had his head out of the west window of the engine cab, and he saw them going north, and he saw that they appeared to be talking to each other, and he testified that they appeared to be unconscious of the presence of the train coming behind them. He says they were in the clear, and that they were three feet from the rail; but if so, that would be only three-tenths of a foot outside of the line of the cars coming behind them. He could not fail to see that the slightest variation on their part to the east of the path they were traveling at the instant when the car should reach them, would necessarily cause them to be struck and would endanger their lives. He knew that the switch was there. He knew that in that distance of 4.7 feet a switch stand stood nearly in the middle, and that there would be danger that there they would be close to the track. The fireman and the rest of the train crew were not fellow-servants with these section men. He gave them no warning, unless the ringing of the bell. He saw that they apparently did not hear the bell, if it was ringing. There were two things he could have done that would have protected these men. There was a whistle on the engine, and he could have caused it to be blown and danger signals to be given therewith; he could have caused the speed of the train to be slackened. He did neither of these things, but- trusted to luck that when the cars actually came up with these men they would still be at least three inches out of the line of the cars. The acts and omissions of this fireman were the acts and omissions of appellant. This proof not only required the court to submit to the jury the question whether appellant was negligent, but the jury might well find from this evidence that this conduct of appellant’s servants who saw the perilous position of deceased and who did nothing to warn them was wanton and wilful. As said in Martin v. C. & N. W. Ry. Co., 194 Ill. 138: “The knowledge of this fireman was the knowledge of the defendant; and if he neglected his duty when he had knowledge that decedent was upon the track and did not notify the engineer in time to enable him to avert the injury, and could have done so, then it was a question for the jury whether the defendant was not guilty of negligence and whether that negligence was not wanton and reckless to the extent of wilfulness.” In Chicago Term. Tr. R. R. Co. v. Gruss, 200 Ill. 195, the court said: “We are of opinion that the evidence tended to prove that appellant was guilty of wantonly backing its train against the appellee and injuring her as charged in the declaration. It appears that the train ran back a distance of one hundred feet after the brakeman had discovered and knew her perilous position on the bridge. As the engineer testified he could have stopped the train within thirty feet after having received a signal to stop, it was a question for the jury under all the circumstances in evidence whether appellant’s servants in charge of the train were guilty of wilfulness of wantonness or not.” In I. C. R. R. Co. v. Leiner, 202 Ill. 624, numer.ous cases are collected upon the subject of what amounts to wilful or wanton conduct. It was there held that to constitute wilful and wanton negligence it was not always necessary to prove that the defendant’s servants were actuated by ill-will towards the plaintiff. The court there quoted with approval the following from Thompson on Negligence: “An entire absence of care for the life, the person or the property of others, such as exhibits a conscious indifference to consequences, makes a case of contructive or legal wilfulness such as charges the person whose duty it was to exercise care with the consequences of a wilful injury.” In E. J. E. & E. Ry. Co. v. Duffy, 191 Ill. 489, the court said: “The evidence tends to prove that the train was going at a high rate of speed around a sharp curve where the view was obstructed by a high embankment, approaching a street which was much traveled, giving no warning by ringing of bell or sounding of whistle; and this testimony, without passing upon its weight, or whether it was overcome by other evidence, tended to prove the charge of wilfulness and wantonness in the management of the train.” In L. S. & M. S. Ry. Co. v. Bodemer, 139 Ill. 596, the court defined the degree of negligence which the law considers equivalent to a wilful or wanton act as “such a gross want of care and regard for the rights of others as to justify the presumption of wilfulness or wantonness.” In P. C. C. & St. L. Ry. Co. v. Kinnare, 203 Ill. 388, each count of the declaration was based on a charge of wilful and wanton negligence, and neither count alleged that the deceased was exercising any care for his own safety, and the court there said: “The evidence on the part of the plaintiff tended to prove that deceased was in plain view of defendant’s engineer, who was looking toward him; that the tender had a sloping top, and the engineer could see the rails at a distance of seventy feet from the engine, and could see the deceased at a less distance; that the engineer saw him and backd the engine slowly toward him without warning of any kind.; that deceased remained in the same position as long as the engineer saw him ; and the engine could have been readily stopped, but the engine continued backing up without warning until the accident. This evidence fairly tended to prove the averments of the declaration.” We are of opinion that the proof in this case above recited required the court to submit to the jury the question whether appellant’s servants in charge of this train were not guilty of wilful and wanton negligence within the meaning of the foregoing authorities.

In arguing the question whether deceased was in the exercise of due care for his own safety appellant assumes that McNirney and he knew that the second west bound freight had come in from the south, that it was necessary that it be placed on the passing track to let a west bound passenger train go by, which was about due, and therefore that they knew that it was necessary that the passing track be cleared of train number 93, and that it should go either upon or beyond the east bound track. We are of opinion that the evidence does not show that either McNirney or deceased knew that the second freight train had come in and that train number 98 would have to be placed or was about to be placed west of the passing track. The last that McNirney saw of train 93 before the accident was when he went to the tool house, and train 93 was then standing still on the passing track. There is no proof that either he or deceased knew that it was moved therefrom or would be required to move therefrom. Again, the evidence shows that a little way north of the switch by which train 93 was pushed from the east bound tracks over to the switch in question, an east bound freight train stood. It was apparently ready to start south on the east bound track. That was the track over which it would pass. McNirney and Olhaber would naturally be watching to keep out of the way of that train. They would not naturally expect that cars would be projected north by an engine in the rear directly towards that standing train and at a speed of perhaps ten miles per hour. The jury could reasonably find from the evidence already recited that the bell on the engine at the rear of the train 93 was not rung. Deceased had a right to rely .on obedience by appellant to the ordinance requiring that bell to be rung. I. C. R. Co. v. Gilbert, 157 Ill. 354; St. L., A. & T. H. R. R. Co. v. Eggmann, 161 Ill. 155; East St. Louis Ry. Co. v. Eggmann, 170 Ill. 538; Dukeman v. C. C. C. & St. L. R. R. Co., 237 Ill. 104; Cook v. C. R. I. & P. Ry. Co., 153 Ill. App. 596, in which latter case the Supreme Court refused a certiorari on June 17, 1910.

The fireman testified that just before the head car reached the deceased the latter turned and started across the track, and he then, when the head car appeared to be about two feet from these men, first started to cause the engineer to stop. There are reasons for not giving absolute credence to tbe testimony of the fireman tbat Olhaber started to cross tbe track. But if be did, yet in view of all tbe evidence we are of opinion it was still a question for tbe jury whether deceased was in tbe exercise of due care for bis own safety or was guilty of contributory negligence.

Was tbe risk assumed "by tbe deceased? He bad been working as section man in those yards off and on for fifteen years. Appellant insists tbat everything was done by appellant at this time in tbe usual manner. It was customary for engines to switch cars from one track to another. There was no proof tbat it was customary to disobey tbe ordinance requiring tbe ringing of tbe bell, nor tbat it was customary to back a string of cars over switches at a speed of seven or ten miles per hour with no one upon tbe cars to warn of their approach, and with no air brakes attached with which the cars could be quickly stopped. An employe does not assume tbe risk of bis employer’s negligence, nor does be assume tbe risk of being injured by tbe negligence of other servants of bis employer who are not bis fellow-servants. Hartley v. C. & A. R. R. Co., 197 Ill. 440; C. & E. I. R. R. Co. v. White, 209 Ill. 124; Ill. Third Vein Coal Co. v. Cioni, 215 Ill. 583; Klofski v. Railroad Supply Co., 235 Ill. 146; Gathman v. City of Chicago, 236 Ill. 9.

Appellee offered in evidence tbe ordinance upon which tbe fourth count was based. It read, “Tbe bell of each locomotive engine shall be rung continually while such engine is running within said city.” Appellant objected to its introduction on tbe ground it bad been repealed since this accident, and in tbe absence of tbe jury offered to tbe court in support of tbe objection an ordinance adopted on April 23, 1907. It contained a provision on tbe subject of ringing tbe bell of an engine, of exactly tbe same meaning and containing almost tbe same words as tbe ordinance upon which tbe fourth count was based. It also contained tbe following: “All ordinances and parts of ordinances in conflict with the provisions of this ordinance are hereby repealed.” As the provisions were the same, the enactment here declared upon was not repealed. Bnt again, section 2 of chapter 131 of the Bevised Statutes enacted that “the provisions of any statute so far as they are the same as those of any prior statute shall be construed as a continuation of such prior provisions and not as a new enactment.” Therefore, the second ordinance was a continuation of the first as to the subject of the ringing of an engine bell. But if this ordinance declared upon had been absolutely repealed and nothing substituted for it still section 4 of the same statute provides that no new law shall be construed to repeal a former law, whether such law is expressly repealed or not, as to any act done or any right accrued or any claim arising under the former law, save only that the proceedings shall thereafter conform so far as practicable to the laws in force at the time of such proceeding. This was construed to apply to such amendatory legislation in People v. Zito, 237 Ill. 434. Again, this ordinance did not give the right of action declared upon in the fourth count, but the ordinance was only evidence tending to show that appellant was negligent, because it disobeyed said ordinance requiring the ringing of a bell. If appellant was negligent in not obeying that ordinance, and because of that negligence a person was injured, the act so negligently done on January 7,1907, while the ordinance was in force, could not be made a non-negligent act afterwards by the adoption of another ordinance on April 23, 1907, repealing the former. But still further, even if the ordinance had been repealed, and if because thereof the cause of action stated in the fourth count could not be maintained, still the ordinance was competent evidence for its bearing on the question whether deceased was exercising due care for his own safety or was guilty of contributory negligence. He had a right to expect appellant to obey the ordinance then in force, and to rely upon its doing so, and if the bell was not rung behind him, then the ordinance tended to show that he was not negligent in acting on the assnmpition that no train or engine was approaching from that direction.

It is argned that instruction number one given for appellee was erroneous. It was approved in C. & A. R. R. Co. v. Pearson, 184 Ill. 386, and Dickson v. Swift Co., 238 Ill. 62, and the arguments of appellant against it are answered in the latter case. It is argued that instruction number two given for appellee was erroneous. It authorized a recovery if from the evidence the jury believed the risk was not assumed and that Olhaber was in the exercise of ordinary care for his own safety, etc., and if the accident was caused by the negligence of appellant as charged in the declaration or some count thereof. It is argued that this was erroneous because one count was upon wilful and wanton negligence and there was no evidence tending to show wilfulness or wantonness. On the contrary, as already stated, we conclude that there was evidence on that subject sufficient to go to the jury. But if not, still this instruction is not at all like that disapproved in A. E. & C. Ry. Co. v. Gary, 221 Ill. 29, upon which appellant relies. Instructions which authorize a recovery if plaintiff has proved his case as alleged in the declaration or some count thereof have been approved in many cases. H. & St. J. R. R. Co. v. Martin, 111 Ill. 219; Penna. Co. v. Backes, 133 Ill. 255; C. & E. I. R. R. Co. v. Filler, 195 Ill. 9; Kirk & Co. v. Jajko, 224 Ill. 338. Appellant has not discussed at length the instructions which it requested and the court refused, and we think it sufficient to say of them that to some extent they were argumentative, and that so far as they were correct they were embodied in given instructions.

We find no reversible error in the record, and the judgment is therefore affirmed.

Affirmed.


text:
    Rudolph Ehrlich, Appellee, v. Chicago Great Western Railroad Company, Appellant.
    Gen. No. 5415.
    1. Ordinary care—when allegations of, not essential. Where an injury is alleged to have been inflicted upon the plaintiff by the wilful and wanton act of the defendant, it is not necessary to allege or prove that the plaintiff was in the exercise of due care.
    2. Instructions—when erroneous in withdrawing right to recover for wilful injury. The allegations of a cause of action sounding in tort are divisible and notwithstanding each count of the declaration alleges both a negligent and a wilful injury and the exercise of ordinary care recovery may be had upon proof of wilful injury without proof of ordinary care; therefore, an instruction which tells the jury that the plaintiff is not entitled to recover in the absence of proof of the exercise of ordinary care, is erroneous.
    3. Negligence—what tends to establish both actual and wanton. Evidence which shows that a freight train was running through a hamlet at a rate of speed from 20 to 25 miles per hour in the night time without a headlight on the engine, tends to establish negligence both actual and wanton.
    4. Negligence—-when failure to observe statute as to ringing of bell approaching highway, does not confer cause of action. The failure to ring a bell 80 rods before reaching a highway does not confer a cause of action in favor of one who was at the time upon the right of way of a railroad company 40 rods beyond the crossing in the opposite direction from which the train was approaching; but these facts are competent upon the question of the exercise of ordinary care.
    5. Trespasser—who upon right of way not. Held, that an employe whose death resulted from the accident in question in this case though not at the time acting in the discharge of his duties was under the evidence not a trespasser upon the right of way of the railroad company, his employer.
    Action in case for personal injuries. Appeal from the Circuit Court of Jo Daviess county; the Hon. Richard S. Farrand, Judge, presiding.
    Heard in this court at the October term, 1910.
    Reversed and remanded.
    Opinion filed April 21, 1911.
    Sheean & Sheean, for appellant; John Barton Payne, of counsel.

      T. J. Fitzpatrick and F. J. Campbell, for appellee.
   Mr. Justice Dibell

delivered the opinion of the court.

Eudolph Ehrlich was struck by a fast freight train of the Chicago Great Western Railway Company about two o’clock a. m. of December 30, 1908, at a hamlet called Aiken and was injured. He brought this suit to recover damages therefor and had a verdict and a judgment for $3,500 from which the railroad company appeals.

At the time the accident occurred the road was operated by receivers and much space is occupied in the declaration with averments to show the liability of appellant for the torts of the receivers, but those allegations do not need to be stated. The first count of the declaration charged that appellee was fireman on a helper engine, as hereinafter stated, and removed his clothes from the engine; and that as he was doing so appellant ran a certain train No. first 61 without any headlight burning on said engine, and thereby while appellee was rightfully upon the railroad track and not being able to see said train because of the absence of a headlight, appellee was struck and injured. The second count contained like allegations that said train was run without a headlight burning so that it could be seen by a person crossing said track, and that appellee, rightfully on said track, was not able to see said train because said headlight was burning so dimly, and he was thereby struck and injured. The third count contained like allegations except that the cause of the injury was alleged to be that said train No. first 61 drove to and across a certain public highway a short distance from where appellee was then, and that appellee listened for the whistle and bell but no bell was rung or whistle sounded eighty rods from the crossing and kept ringing and whistling till said crossing was reached, and thereby appellee, relying upon said signals being given to warn him of the approach of said train, was struck and injured. The fourth count alleged that appellee listened for the signal necessary to be given upon approaching a station by a long blast of the whistle, and that said train No. first 61 ran into and through said station of Aiken without blowing said signal to give warning of its approach, and for lack thereof appellee was struck and injured. Each count averred that the act of omission therein stated to have caused the injury was done wantonly and wilfully, or wrongfully and wilfully, and also carelessly and negligently, and that such act was done or omitted by servants of appellant who were not fellow servants of appellee, and that appellee was exercising due care for his own safety. The court refused all instructions requested by appellee and gave numerous instructions requested by appellant. When appellant moved for a new trial appellee consented thereto, but the court denied the motion. Appellee then moved for a new trial, but the court denied the motion and entered judgment. Appellee has assigned cross errors questioning rulings of the court on evidence and instructions and the amount of the verdict.

Where an injury is alleged to have been inflicted upon a plaintiff by the wilful and wanton act of a defendant, it is not necessary to allege or prove that plaintiff was in the exercise of due care. Where the act is alleged to have been negligent only, it is necessary to allege and prove that plaintiff was in the exercise of due care. It will be observed that each count of this declaration combines the elements of two different grounds of liability. The court instructed the jury at the instance of appellant that in order to entitle appellee to recover he must prove that he was in the exercise of due care for his own safety and that the railroad company was guilty of negligence which caused the injury, from which the jury would necessarily understand that plaintiff could not recover under this declaration upon proof that his injuries were caused by the wilful and wanton conduct' of appellant, unless he also proved that he was in the exercise of dne care for his own safety. These instructions raise the question whether appellee, having averred in each count, not only that the acts and omissions which caused his injury were wanton and wilful hut also that they were negligent and that appellee was in the exercise of due care, was hound to prove all of those allegations in order to entitle him to recover. It was held in City of Bock Island v. Cuinely, 126 Ill. 408, Weber Wagon Co. v. Kehl, 139 Ill. 644, N. Y. C. & St. L. R. R. Co. v. Blumenthal, 160 Ill. 40, and City of Joliet v. Johnson, 177 Ill. 178, that in torts the averments are divisible, and that if a plaintiff proves enough of his charge to make out a case of liability he may recover. In Guianios v. De Camp Coal Co., 242 Ill. 278, the declaration charged that appellant negligently, carelessly and wilfully did the things which caused the death of appellee’s intestate. The proof did not show that the act was wilfully done. It was held that if the proof showed that the act was caused by the negligence of appellants recovery could be had, though the acts were not wanton or wilful. This is not inconsistent with the holdings of the court in C. B. & Q. R. R. Co. v. Dickson, 88 Ill. 431, and Wabash R. R. Co. v. Kingsley, 177 Ill. 558, when the allegations and proofs in those cases are considered. In the Dickson case, supra, the first count charged that the whistle which frightened appellee’s team and caused the injury was sounded in a loud, shrill, unnecessary and negligent manner, needlessly, wantonly, negligently and maliciously, and it was held that it was competent for the plaintiff under that count to make a case of negligence only, but that such a case was not made by the proof. The second count did not charge negligence but that the act was wilful, wanton and malicious, and it was held that there could not be a recovery under that count on proof of mere negligence. In the Kingsley case, supra, appellee, the plaintiff was a trespasser, and it was held that he could not recover unless the act was wanton and wilful. "We conclude from these authorities and from L. S. & M. S. Ry. Co. v. Bodemer, 139 Ill. 596; Wabash R. R. Co. v. Speer, 156 Ill. 244; E. J. & E. Ry. Co. v. Duffy, 191 Ill. 489, and Chicago Union Traction Co. v. McGinnis, 112 Ill. App. 177, that if the acts and omissions here relied upon were proved and were wanton and wilful, appellee could recover without proof that he was in the exercise of due care for his own safety. Hence, the instructions referred to erroneously withdrew from the jury appellee’s right to recover for wilful and wanton conduct of appellant causing the injury without proof of his own due care.

There was proof introduced by appellee that train first 61 was run through Aiken at a speed of from 20 to 45 miles per hour without any headlight upon the locomotive, and other proof that the headlight was burning but that the glass in front of the light was broken, and the hole therein stuffed with waste, so that the light was very dim and could not readily be observed. Appellant contends that it was not required to have a headlight upon the locomotive of that train, and therefore that neither negligence nor wanton or wilful conduct was shown by proof that this train was running in that condition. In Burling v. I. C. R. R. Co., 85 Ill. 18, it was held that it was a high degree of negligence to run a train without a headlight on a dark night. In East St. L. Connecting Ry. Co. v. O’Hara, 150 Ill. 580, it was held that if the engine was run in the dark without a headlight or a bell ringing at a dangerous rate of speed along a much frequented street, such acts would be liable to the construction of being in wanton and wilful disregard of the rights and safety of the public so as to amount in law to wilful and wanton negligence, without proof that defendant’s servants were actuated by ill will directed specifically towards the plaintiff or that they knew that plaintiff was in such a position as to be likely to be injured. In B. & O. S. W. Ry. Co. v. Alsop, 176 Ill. 471, it was held that it was a high degree of negligence to run a train without a headlight on a dark night. The same doctrine was restated in Chicago City Railway Co. v. Fennimore, 199 Ill. 9. In I. C. R. R. Co. v. Leiner, 202 Ill. 624, the language of the O ’Hara case, supra, with reference to running an engine without a headlight in the dark was quoted with approval. In L. S. & M. S. Ry. Co. v. Enright, 227 Ill. 403, where the proof tended to show that the night was dark and the headlight was dim and smoked and that no hell was ringing and where the declaration contained no averment about the headlight, it was held that these were matters which that the plaintiff had a right to expect that the engine bell would be ringing and the headlight properly burning. In some of these cases the injury occurred in a city, but in others it was in the country. We therefore conclude that the absence ®f a headlight on train first 61 which struck appellee or the dimness of the headlight thereon, were matters tending to show negligence and also wanton and wilful conduct by appellant, although the servants of appellant running that engine did not know of appellee’s presence on the track, they being obviously not fellow servants of appellee. No instruction therefore should have been given for appellant which would prevent appellee from recovering for wanton and wilful conduct of appellant without proof of due care by appellee. We express no opinion upon the question whether the evidence would warrant a verdict that the injury was wilful and wanton.

Train first 61 was west bound. Appellee was struck when he was about 686 feet west of a public highway crossing at Aiken. Appellee introduced proof tending to show that the statutory requirements for the blowing of a whistle or the ringing of a bell for a distance of 80 rods before reaching that highway were not obeyed in the running of this train. Appellee claims that this was negligence authorizing a recovery. Appellant contends that these signals are only required for the benefit of those traveling on the highway and not for the benefit of persons on the right of way of any other place, and therefore if appellee’s proof on this subject were true, which appellant denies, still no right of action is shown in appellee by reason thereof. Appellee relies upon such cases as I. C. R. R. Co. v. Gilbert, 157 Ill. 354; St. L. A. & T. H. R. R. Co. v. Eggmann, 161 Ill. 155; E. St. L. Ry. Co. v. Eggmann, 170 Ill. 538; Dukeman v. C. C. C. & St. L. R. R. Co., 237 Ill. 104, and Cook v. C. R. I. & P. Ry. Co., 153 Ill. App. 596. In those cases, however, the injury sued for was inflicted within the bounds of a city where a municipal ordinance was violated. The ordinances violated in those cases did not relate merely to highway crossings, but controlled the conduct of the railway company everywhere within the municipality. It is also true that employes and persons lawfully around tracks and trains have a right to rely upon the rules of the railroad company, as held in C. & A. R. R. Co. v. Kelly 182 Ill. 267, and C. & A. R. R. Co. v. Eaton, 194 Ill. 441. In Otstot v. I. I. & I. Ry. Co., 103 Ill. App. 136; I. I. & I. Ry. Co. v. Otstot, 113 Ill. App. 37, and C. & N. W. Ry. Co. v. Thomson, 128 Ill. App. 594, we said that workmen upon a railroad right of way had a right to expect the master and its other servants operating trains to observe ordinances and statutes, and also rules and general customs of the company. The injury involved in the Otstot cases, supra, was received within the limits of a city, and the failure to ring a bell there relied upon as giving a cause of action was in violation of a rule of the company and also of a custom of long standing, and the engineer who started his engine in the yards and ran over the plaintiff without ringing the bell knew when he did so that appellee and his associates were at work on the track in a perilous position a short distance ahead of him. The final judgment in that case was affirmed in I. I. & I. Ry. Co. v. Otstot, 212 Ill. 429, but without reference to the viotion of the statute. In the Thomson case, supra, we held that there was a clear preponderance of proof that the headlight was burning and the bell ringing. Our reference to the statute in those cases was unnecessary to the decision, and should have been qualified. In Williams v. C. & A. R. R. Co., 135 Ill. 491, the servants of the railroad company in charge of a running engine failed to ring a bell or sound a whistle within eighty rods of a certain highway crossing and to keep the same sounding, as the statute required, and the team of a farmer plowing in a field near by was frightened by the train and he was injured by them, and it was alleged by him in his suit for damages that if the signal had been given he would have held his team and would not have been injured. It was decided that, though the railroad company neglected its duty, it did not neglect a duty which it owed to him, but that the requirement of the statute was for the benefit of travelers on the highway. In C. C. C. & St. L. Ry. Co. v. Halbert, 179 Ill. 196, it was held that the statute did not require these signals to be given where the highway crossed over or under the railway and not upon the same level. To the same effect is Blanchard v. L. S. & M. S. Ry. Co., 126 Ill. 416. In Thompson v. C. C. C. & St. L. Ry. Co., 226 Ill. 542, it was held that one lawfully on the right of way, near a highway, to remove live stock which had strayed thereon through the negligence of the railway company, was not entitled to the statutory signals that a train was approaching that highway crossing, as the railway company owed bim no duty to give those crossing signals. The doctrine is approved in People v. I. C. R. R. Co., 235 Ill. 374. See L. E. & St. L. Con. R. R. Co. v. Lee, 47 Ill. App. 384, and Halbert v. Wabash R. R. Co., 151 Ill. App. 352. We conclude that appellant did not violate a statutory duty it owed to appellee who was then over forty rods west of the highway crossing, if its train coming from the east failed to give the statutory signals as it approaclied that highway, ancl that proof of the failure to observe that statute does not make a ease in favor of appellee. The evidence that these signals were not given was competent upon the question whether appellee was exercising due care. This is shown by B. & O. S. W. Ry. Co. v. Alsop, supra, where plaintiff’s intestate was a night trackwalker in the employ of the railway company and was killed while on the track in the country at a place about a quarter of a mile from a highway crossing. It was argued there that the court erred in admitting, proof that the freight train which killed plaintiff’s intestate did not blow a whistle as it approached that highway. It was held that this evidence was not material as showing a substantive right of recovery, but was admissible as tending to show that the deceased was not aware of the approach of the train and was not notified of its approach. The court there said: “The assumption of risk by a track-walker in the discharge of the duties for which he is employed includes all risks incident to his employment. But such assumption of risk does not release the railroad company from the discharge of a duty imposed upon it by the statute, which provides that on approaching a street or road crossing a hell must be sounded. The discharge of this statutory duty by the corporation might give notice to one situated as was the deceased, of the approach of the train, and cause Tnm to use a degree of care and caution commensurate with his danger, and for this purpose the evidence would be admissible.”

Appellant contends that appellee was a trespasser and therefore cannot recover unless appellant’s conduct was wilful and wanton. This requires a consideration of some of the facts. At Aiken the north track was the west bound and the next track south was the east bound main track. South of these was a passing track and still further south a storage or house track. North of these tracks and just east of the public highway was a hotel. There was only one other dwelling house at Aiken. The grade from Aiken to Stockton, several miles east, was so steep that appellant kept two helper engines on the storage track at Aiken to push heavy freight trains up the grade. It kept at Aiken three crews, each consisting of an engineer and a fireman, who operated these two helper engines night and day as required. These men lived at the hotel on the north side of the tracks and were liable to have to go across the tracks to the helper engines at any time of the day or night. Appellee had been a fireman on an engine on a regular freight train of appellant. Four days before this accident his engine went into the ditch and was so disabled that it had to be sent to the shops and he was thereby temporarily thrown out of that employment. He was then given a place as fireman with Engineer Wikoff on these helper engines at Aiken. There was also an engineer named Webb running the helper engines with a fireman named Eicheson. On the evening preceding this accident Webb received a telegraphic order from his superior to go with his fireman to Dubuque a few miles west, and evidently for the purpose of having Webb and his fireman take a regular freight train from Dubuque. Eicheson was not qualified to run as fireman on a regular train, while appellee was. Appellee’s teeth were troubling him and he wished to go to Dubuque to obtain treatment therefor. Appellee and Eicheson agreed that Eicheson should take appellee’s place with Engineer Wikoff, who was to go east with the next helper engine, while appellee should go to Dubuque as Webb’s fireman. This arrangement seems to have been assented to by the two engineers. No higher officer had authorized it. The telegraphic order to Webb did not name the fireman who was to come with him. Eicheson went with Wikoff when the next helper engine was called out and he had just started east at the head of a freight train when this accident occurred. After Wikoff and Eicheson had brought the engine out onto the east honnd track ahead of an east bound freight and had coupled on at about 1:40 or 2 o ’clock a. m. appellee remembered that his overalls and certain other outside clothing were in this helper engine, which was some distance west from the hotel and highway. He went from the hotel across the tracks, went upon this helper engine, got his bundle and alighted. He then found his bundle loose and refolded it on the ground. When the wreck had occurred four days before he could not leave a package of other clothing he had on that engine, and he put it in a caboose used by Conductor O’Birne. After appellee left the helper engine it occurred to him that perhaps that was O’Birne’s train, and if so, his other clothes were in the caboose at the rear thereof. He thereupon got upon the regular engine on that train and inquired if O’Birne was the conductor and learned that he was not. By this time the train had started. He stepped off the engine on the side next to the west bound track and started east towards the hotel. There was a straight track ahead of him for a mile. He saw no headlight and heard no whistle or bell. Just before he was struck he saw a bright glow ahead of him as if a fireman on an approaching engine was shaking down or raking off his fire. He sought to jump off the track but was struck by the train, which was first 61 west bound. The conductor and a brakeman on the train just starting east, who were still upon the ground on the north side of their train, saw no headlight and heard no bell or whistle, and barely escaped being struck at the same time by the same train. We are of opinion that the exchange of firemen was tacitly approved by the engineers, and that appellee was still in the employ of appellant, and that he was not a trespasser, though he was not at that instant discharging a duty to his employer. This position is supported by the principles laid down in John Spry Lumber Co. v. Duggan, 182 Ill. 218; Heldmaier v. Cobbs, 195 Ill. 172; E. St. L. Con. Ry. Co. v. Altgen, 210 Ill. 213; L. S. & M. S. Ry. Co. v. Enright, supra; Pauckner v. Wakem, 231 Ill. 276, and I. C. R. R. Co. v. Panebiango, 129 Ill. App. 1. Though not at that instant on duty, he had a right to go to the helper engine to get his clothing, and he was intending, and so was Webb, that he should go with Webb to Dubuque pursuant to appellant’s order, and there act as fireman with Webb on a regular freight train. The question whether he was in the exercise of due care under all the circumstances surrounding him, in view of the absence of a headlight, bell and whistle, was for the jury to decide.

As the case must be tried again, we deem it unnecessary to discuss appellee’s contention that the damages awarded are inadequate compensation for the injuries sustained.

The judgment is reversed upon the cross errors at the costs of appellant, and the cause is remanded for a new trial.

Reversed on cross errors and remanded.