text:
    The St. Louis National Stock Yards v. The Wiggins Ferry Company.

      Filed at Mt. Vernon September 27, 1884

      Rehearing denied May Term, 1885.

    1. Former adjudication—whether conclusive upon question involved. In an action of forcible detainer by the owner of land over which was constructed a connecting railroad track, to recover possession of the ground upon which the track was constructed, the court found that the track was built under a mere verbal license from the owner, and not under a contract with him, and this judgment was affirmed by the Appellate Court and by this court: Held, on bill to enjoin proceedings under the judgment, and for a specific performance of an alleged contract to grant the right of way, that such judgment was conclusive upon the parties that there was no contract, but only a mere license.
    2. Statute op Frauds—part performance under verbal contract to convey right of way. If a party verbally contracts with a land owner for the right to construct a railroad over the land, and is permitted to enter upon the same, and expends money in building the track, in good faith, on the owner’s verbal promise to convey, and such party otherwise performs or offers to perform his part of the agreement, such performance or partial performance will, as in other cases, take the case out of the Statute of Frauds, and a court of equity will decree a specific performance of the agreement.
    3. Same—in case of a mere license by parol. But a mere parol license to construct a railway track over the land of another is within the Statute of Frauds, and a claim of right under such license can not be enforced in equity, even after the expenditure of a large sum of money in constructing the road and’track, made on the faith of it. Such a license, if perpetual, would be to create an interest in the land, which can not be granted by parol.

      i. Estoppel—to revoke a license by parol—after the expenditure of money on the faith of it. Where a part)’, under a mere verbal license from the owner, enters upon the land of another and constructs a railway track over the same without objection on the part of the land owner, but without any agreement for compensation or as to the duration of the easement, and no guaranty is asked or given as to the length of time the right of way shall be enjoyed or any agreement not to remove the same, the land owner will not be estopped, in equity, from revoking such license, even after the expenditure of money in constructing the road. In such case the licensee can not claim that he has been misled or deceived by the licenser, as he must have known that such a license was revocable.
    5. Specific performance—must be of a contract. Specific performance, as an equitable remedy, is based upon the existence of a contract between the parties to the suit, or between those through whom they claim; and when it was settled by a prior action at law that no such contract or promise was ever made, and that the acts done and claimed as in performance, were under a mere parol license, no specific performance can be decreed.
    Appeal from the Appellate Court for the Fourth District;— heard in that court on appeal from the Circuit Court of St. Clair county; the Hon. Amos Watts, Judge, presiding.
    The bill of complaint exhibited in this case by the St. Louis National Stock Yards, in the circuit court of St. Clair county, on February 10, 1882, sets out that the complainant, being th§ owner of United States survey No. 627, containing four hundred acres of land adjacent to Bast St. Louis, upon which tract its stock yards were situated, was desirous of having a connecting railway track as near as might be to the Bast St. Louis stations of divers railroads; that the Wiggins Ferry Company, being the owner of land between said survey 627 and said railroads, on or about May, 1875, offered to give complainant, for the purpose of a right of way for said contemplated connecting track, a strip of land sixty feet wide, (part of said ferry company’s land,) extending from complainant’s survey 627 to the main track of the Wabash railway, on the condition that complainant would locate and construct the track upon the ferry company’s land north of Stock Yard avenue, an improved highway leading from the stock yards to Front street, on the Mississippi river, at East St. Louis, and so as to enable the ferry company to lay out the land between Stock Yard avenue and the proposed track, into lots, of sufficient depth for manufacturing purposes, and to permit holders of lots abutting the track to connect therewith; that complainant accepted the proposal so made, and thereupon, in pursuance of the agreement, laid out a sixty feet right of way upon and across the ferry company’s land, in July, 1875, and within sixty days thereafter, with the knowledge and consent of such company, constructed said projected connecting track on said right of way; that the entire length of the connecting track was three thousand one hundred and fifty feet, permanently built, at a cost to complainant of $12,000,—one thousand seven hundred and fifty feet of it being upon this right of way, the other one thousand four hundred feet being upon complainant’s survey 627, and including a permanent bridge built across Cahokia creek; that the part of the track upon survey 627, including the bridge, cost $7000 out of the total of $12,000, and would not have been built, and was and is of no use to complainant without the other one thousand seven hundred and fifty feet, each being a necessary part of the entire connecting track; that ever since the completion of the track, in the fall of 1875, it was, with the knowledge and acquiescence of the ferry company, maintained and operated by complainant, for more than five consecutive years; that in 1876 complainant applied to the ferry company for a deed of said right of way, and the latter promised to make it as soon as it could have a survey made of the sixty feet wide strip, and thereafter, on a subsequent application, refused to make a deed; that oh April 17, 1881, the ferry company commenced suit in án action of forcible detainer, against complainant, to recover possession of the middle twenty feet of said sixty feet wide right of way, one thousand seven hundred and fifty feet in length, containing said connecting track, and on June 1, 1881, the ferry company made a lease for ten years for said middle twenty feet, for §250 per annum, to the East St. Louis Connecting Bailway Company; that thereafter the ferry company recovered judgment in the forcible detainer suit, which judgment was affirmed by the Appellate and Supreme courts, whereupon,, on January 30,1882, a writ of restitution was issued. The bill prays that the ferry company may be enjoined in the premises, that it be required to make a conveyance of the right of way to complainant, and that the lease to the connecting railway company be cancelled. The circuit court, on the hearing, denied the relief prayed for, and ordered the bill to be dismissed. On appeal to the Appellate Court for the Fourth District, the decree was affirmed, and complainant appealed to this court.
    Mr. John B. Bowman, Mr. A. S. Wilderman, and Mr. R. F. Wingate, for the appellant:
    The forcible detainer suit in 102 September 27, 1884 514, was an action at law, and did not put in issue any of complainant’s equities. Those equities were not and could not be adjudicated. Wilburn v. Haines, 53 Ill. 207.
    That there was a contract between the parties as to the right of way, enforcible in equity, appears from the following cases: Bohanan v. Bohanan, 96 Ill. 591; Kurtz v. Hibner, 55 id. 514; Bright v. Bright, 41 id. 97; Langston v. Bates, 84 id. 524; Borders v. Murphy, 78 id. 81; Coles v. Pilkinton, L. R. 19 Eq. 174; 11 Eng. (Moak’s ed.) 768.

      A representation made by one party, for the purpose of influencing the conduct of the other party, and acted on by him, will, in general, be sufficient to entitle him to the assistance of a court of equity. Coles v. Pilkinton, L. R. 19 Eq. 174; Loffus v. Maw, 3 Giff. 603; Hammersley v. DeBill, 12 C. & F. 62; Pomeroy on Contracts, sec. 126, and notes; Williams v. Evans, L. R. 19 Eq. 574.
    The expressing of the terms of a contract inartificially will not prevent its enforcement, if the intention is apparent from the whole instrument. Bull v. Bell, 4 Wis. 54.
    When the agreement leaves the precise location of the land in doubt, but the parties themselves have located it by giving and receiving possession, the location becomes definite. Parkhurst v. Van Courtland, 14 Johns. 15.
    A right of way, whether by condemnation or grant, continues during user, by legal implication. Goddard on Easements, 451.
    If there be a grant by a land owner to a railroad, for the purpose of its right of way, or where the land had been taken for such a purpose by the exercise of the right of eminent domain, prior to the adoption of the present constitution, it would seem to convey to the railroad company the fee; but that fee would be a base or qualified fee, just like the fee of a street of a city. It would be determinable upon the cessation of its use for the purposes of the grant or condemnation. Ferry Co. v. Railway Co. 94 Ill. 83; Pierce on Railroads, 130, 157; Norton v. Railway Co. 9 Ch. Div. 623; S. C. 26, Eng. (Moak’s ed.) 394.
    A license is irrevocable if the licensee, acting on the permission granted, has executed a work of a permanent character, and has incurred expense in its execution. Goddard on Easements, 471; Russell v. Hubbard, 59 Ill. 335; Balinseifer v. Forbes, 74 Ill. 183; Vegte v. Water Power Co. 4 C. E. Greene, 153; Wood v. Leadbitter, 15 M. & W. 838; Swartz v. Swartz, 19 Ind. 447; Morawetz on Private Corp. sec. 82;
      Railroad Co. v. Thornton, 103 Ill. 187; Bigelow on Estoppel, 505; 2 Pomeroy’s Eq. Jur. sec. 802.
    There was such possession and performance of the contract as to take the case out of the Statute of Frauds. Wheeler v. Frankenthal, 78 Ill. 127; Smith v. Yocum, 110 id. 145; Weaver v. Poyer, 79 id. 417; Browne on Frauds, sec. 448; Caldwell v. Carrington’s Heirs, 9 Pet. 103; Williams v. Morris, 95 U. S. 457.
    Mr. Charles W. Thomas, for the appellee:
    Under the pleadings in this case, one of two things, only, can be done: Either the specific performance of a contract to convey must be decreed, or the Wiggins Ferry Company must be perpetually enjoined from dispossessing appellant, on the ground that such an act would be the fraudulent revocation of a license.
    There can be no specific performance of a contract to convey, because it has been adjudicated that the supposed contract to convey was a mere license. It is only contracts that courts of equity will specifically enforce. A parol promise to convey, where the promisee takes possession and makes valuable improvements, and performs or offers to perform, may be enforced. Such are the cases cited by appellant, of Kurtz v. Hibner, 55 Ill. 514, Bright v. Bright, 41 id. 87, Smith v. Yocum, 110 id. 142, and Bohanan v. Bohanan, 96 id. 591.
    While a court of equity may restrain the exercise of a legal right when inequitable and against conscience, it will not, as a general thing, enforce affirmative promises which were never made. Weaver v. Poyer, 79 Ill. 417.
    A court of equity will not, by injunction, place a party in possession of land from which he has already been ousted. Wangelin v. Goe, 50 Ill. 459.
    The writer has been unable to find a case where a mere licensee was, after a revocation, afforded any affirmative relief in the shape of a conveyance. In the following cases, cited by Bingham in his work on the Sale of Real Property, (chap. 111, sec. 1,) no attempt at affirmative relief is disclosed: Yeakle v. Jacobs, 33 Pa. St. 376; Cook v. Stearns, 11 Mass. 533; Mumford v. Whitney, 15 Wend. 380; Otis v. Hall, 3 Johns. 450; Chandler v. Duane, 10 Wend. 563; Stevens v. Stevens, 11 Metc. 251; Foot v. Railroad Co. 23 Conn. 214; Selden v. Canal Co. 29 N. Y. 633; Hewlins v. Shippam, 5 B. & C. 232; Pierrepont v. Barnard, 6 N. Y. 679; Miller v. Railroad Co. 6 Hill, 61; Moulton v. Faught, 4 Me. 298; Woodward v. Seely, 11 Ill. 157.
    A parol license to operate a line of railroad over the land of another, is within the Statute of Frauds. Browne on the Statute of Frauds, secs. 28, 29, 30; Benedict v. Benedict, 5 Day, 464.
    There can be no estoppel here, for the reason there has been no fraud or deception practiced. Appellant has not in any manner been misled or fraudulently induced to build a road over the lands of the ferry company by any promise of any future conveyance.
   Mr. Justice Sheldon

delivered the opinion of the Court:

The arrangement under which the embankment and railroad track in question were constructed, was made with S. C. Clubb, the superintendent of the Wiggins Ferry Company. Question is made as to what was the character of that arrangement, it being contended on the side of the appellant that it was a contract of sale of the right of way. But that we do not regard as now an open question, under the decision of this court in the action of forcible detainer referred to in the bill which was brought by the ferry company, against the appellant, wherein it recovered* judgment for the possession of this railroad track, and which came before this court on appeal from the Appellate Court for the Fourth District. (See St. Louis National Stock Yards v. Wiggins Ferry Co. 102 Ill. 514.) We there held that it was a controverted question of fact, in the case before the Appellate Court, whether such agreement was a contract of sale of the right of way, or but a mere license, and that it must be taken that that court had determined it to be a license, which was a finding of fact that was conclusive upon the Supreme Court, and leaving as the only question for its decision, whether the ferry company was estopped from revoking the license, and if so, whether the estoppel could be made available in the action at law. Only the latter branch of the question was decided,—that such an estoppel could not be availed of in an action at law, but only in a suit in equity,—and the judgment was affirmed, without in any way passing upon whether there was such an estoppel in this case or not. We must take it, then, as an adjudicated fact not liable to be controverted again, that there was here but a mere license to construct this railroad track, and the question presented for determination is, whether, under the circumstances of this case, after the execution of the license by the construction of the railway track at a considerable expenditure of money, the ferry company is estopped from revoking the license.

The proofs show that the railway track in question was constructed in pursuance of an arrangement made with S. C. Clubb, the superintendent of the Wiggins Ferry Company, in the manner and at the cost as stated in the bill; that Clubb had no authority to execute any agreement or writing pertaining to the ferry company’s real estate, but in all cases where there were deeds or leases to be executed, they were executed by the president and secretary of the company, under its seal ; that appellant first made survey of a line for the track, which was not satisfactory to Clubb, and at his instance the line was changed to meet his approval, and so as to run about two hundred and fifty feet north of and parallel with Stock Yard avenue. The track was built upon an embankment, which at first was made only three feet high, but the next year or the year after was raised three feet higher, because of danger from overflow. The track was first laid with iron rails, and was afterward relaid with steel rails. The track was put down as a permanent track, and well built, with a permanent bridge across. Cahokia creek. On May 6, 1875, prior to the making of this arrangement with Clubb, he signed, as superintendent, a writing giving authority to appellant to construct a sewer from its stock yards, across the land of the Wiggins Ferry Company, to the Mississippi river. On May 24, 1878, the Wiggins Ferry Company, by its deed, executed in its behalf by S; C. Clubb, its president, under its corporate seal, and attested by its secretary, conveyed to the Wabash railway company a strip of land one foot wide, in bounding which it was described as extending from the south line of the town of Brooklyn, southwardly, “to a line thirty feet northwardly from and parallel to the center line of a railroad track, defined on the plat hereto attached as stock yard company’s track to stock yards.” That named track is the connecting track located on the land in dispute.

It appears that at the time of the giving of the license by Clubb, (June 19, 1875,) appellant was in negotiation with the Connecticut Land Company, which owned United States survey 626, for a right of way sixty feet wide over that survey, south of Stock Yard avenue, which negotiation had proceeded to the setting of a price by the company upon the land, which appellant was considering, and the connections at the other end, and that survey 626 was all sold to railroad companies other than named in the bill, prior to 1880, and subsequent to June 19, 1875.

The evidence on the part of appellant tends to show that in giving the license there was in view the benefit of the connecting track to the ferry company in having lots of two hundred and fifty feet in depth running back from Stock Yard avenue to the track, which might be valuable for manufaotaring purposes. The embankment and connecting railway track were constructed, at considerable cost, upon the faith of the license from Clubb, and although he was without authority to dispose of the ferry company’s lands, it must be taken, under the proofs, that the track was constructed and operated with the knowledge and acquiescence of the company, and there is evidence tending to show that anticipated benefit to the ferry company’s land, from having lots to abut on the connecting track, somewhat entered into the consideration for giving the license. The circumstances might well, under the decisions of some courts, constitute an estoppel in pais against the revocation of the license, on the ground that to revoke it would be a fraud, after such an expenditure of money upon the faith of the license, and there would be compelled specific performance, by deed of the right of user, as of a contract in part executed. But there was a contrary rule established in this State in the case of Woodward v. Seely, 11 Ill. 157, where it was decided that a license coupled with an interest in land must be in writing; that a license perpetually to overflow one’s land would create an interest in the land, and the license could not be granted by parol; that a court of equity would not enforce a parol license to overflow the lands of the licenser, even in favor of a party who had acted in good faith upon the parol license, and made valuable improvements upon his own land, which would become worthless if the license was revoked. That was the case where an upper proprietor had induced another party to purchase a water privilege immediately below, and improve it by the erection of a mill, at a cost of some $5000, upon a parol promise that he might overflow the land of the upper proprietor. After the purchase of the land and erection of the min below, the licenser revoked the parol license, and he was sustained, in equity, in so doing, although the lower mill was worthless without the privilege of overflow. It was admitted there was a conflict in the authorities, and after a review of them to quite an extent, the court arrived at the decision it did, as upon principle. It was there said: “It makes no difference that the complainants may have acted upon the parol license, and erected valuable buildings, which will become worthless in case the license is revoked,—before acting so imprudently they should have acquired permission by deed to overflow the land of the defendants. Nor can the complainants call upon a court of equity to enforce the license upon the ground that they have made valuable improvements, and expended their money, relying in good faith upon it.” It was thought not to be like the case of a parol purchase of land, where, upon part performance, a court of equity will depart from the Statute of Frauds, and compel the vendor who has received the purchase money to make a title to the land; that to enforce the license there, would be a still further departure from the statute, by extending a doctrine originally of doubtful propriety.

Russell v. Hubbard, 59 Ill. 335, where an owner had given verbal permission to use the brick wall of his house for the purpose of attaching thereto a new brick building to be erected on the line of an adjacent lot, and the new house was built of brick and attached to the wall of the other, as permitted, and it was held the party giving the license was estopped from its revocation by reason of its being executed, seems somewhat at variance with Woodward v. Seely, but does not profess to overrule or question it. In Kamphouse v. Gaffner, 73 Ill. 453, we said Russell v. Hubbard must either be limited to cases of party walls, or be considered as overruled; and in Forbes v. Balenseifer, 74 Ill. 183, it is rather intimated that Russell v. Hubbard is to be limited to the particular facts of that case. Woodward v. Seely has never been overruled or directly questioned by this court, that we are aware of, and we think it must govern this case. It has stood so long as the rule in this State that we are disposed to adhere to it, without entering upon consideration of whether or not it might be the proper one to adopt were the question now an original one before this court.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.

Walker, Dickey and Craig, JJ., dissenting.

Subsequently, upon an application for a rehearing, the following additional opinion was filed:

Mr. Justice Mtjlkey : After a very careful reconsideration of this case a majority of the court adhere to the conclusion reached upon the former hearing, as expressed in the opinion already filed in it.

The case of Woodward v. Seely, 11 Ill. 157, can not be distinguished from the present one, and the authority of that case, standing, as it does, in line with the decided weight of authority, has been too long recognized by this court as a correct exposition of the law upon the question involved, to be now overruled without any special reason for doing so. A contrary conclusion can not be placed upon any grounds, however plausible, which are not fully met by the Woodwcurd-Seely case, and many others adopting the same view of the law. Moreover, the conclusion reached is in harmony with other well settled principles of law. The contrary view is not. The right to build a railroad track and operate it upon the land of another is an interest in land which can only pass by grant, and an agreement to convey such a right, if not in writing, is clearly within the Statute of Frauds. If, however, a party, verbally contracting for such right, enters upon the land and expends money in building the track, upon the faith of the owner’s verbal promise to convey, and he otherwise performs or offers to perform his part of the agreement, such performance or partial performance will, as in other cases, take the case out of the statute, and a court of equity will decree a specific performance of the agreement; but in this case we start out with the proposition conceded there was neither a conveyance nor a promise to convey. Specific performance, as an equitable remedy, by its very terms presupposes the existence of a contract between the parties to the controversy, or between those through whom they claim, for it were absurd to talk of the specific performance of an agreement that has no existence. In the case before us it has been solemnly adjudicated that, the railroad track in question was not constructed under any contract, promise or agreement on the part of the Wiggins Ferry Company to convey the right of way to the appellant, and that in building the track the latter.was acting under a mere license. It follows, therefore, that so much of appellant’s argument as is based upon the assumption there was such an agreement, is not warranted by the record, and as this assumption has no foundation in fact, the argument based upon it must necessarily fail.

The only material question in this suit not settled by the former case between the parties, (reported in 102 Ill. 514,) is, whether conceding, as we must, appellant entered appellee’s premises and built the track in question under a mere parol license from the Wiggins Ferry Company, the latter has at any time been guilty of such conduct as to estop it from asserting its right to the possession of the land upon which the track is built. If any such estoppel exists, it is what is known as an estoppel in pais, and consists in appellee having said or done something whereby appellant has been misled to its injury if the license is revoked. Now, it is clear that outside of the fact of revoking the license there is no ground for the claim that appellant has in any way been deceived or misled by appellee. Permission was given to build the track at the place it was built, and it was probably built about as both parties supposed it would be. No deception was practiced, so far as we can perceive, by either of the parties, and none has been suggested. It was a plain, common business transaction. No compensation on the one hand was asked for the right of way, nor was any guaranty asked on the other side as to the length of time this right of way should be enjoyed. Probably both parties supposed the operation of the road would be mutually beneficial, and that that would be ample security against appellee revoking the license on the one hand, and against appellant removing its track on the other. If appellant saw proper, as it did, to enter upon appellee’s land and spend money in constructing its track, upon a mere parol license, which, as matter law, it is conclusively presumed to have known was revocable at the pleasure of appellee, it was its own folly. The case in this respect does not differ in principle from any other where the licensee has expended money in connection with his entry upon land of the licenser. Indeed, this most generally occurs. Suppose, under the circumstances, appellant had concluded it was to its interest to take up the track altogether, it unquestionably would have had the right to do so, however much appellee may have been injured in consequence of it. On principle it would seem there ought to be some mutuality in this respect. The only thing about which appellant can have the slightest pretence for the charge that it has been misled to its injury, is the bare fact that appellee has exercised the right of revocation, when it was, perhaps, thought it never would. It is hardly accurate, under the circumstances, to say appellant was misled, for unless the mere grant of the license to build the track was an implied undertaking to never exercise the right of revocation, appellant was not warranted in assuming appellee would never exercise such right, and if appellant’s expectations in this respect have not been realized, it was simply disappointed, rather than deceived, by the revocation. To say that the license is irrevocable because the thing permitted to be done necessarily involved the expenditure of money, would be going beyond the most extreme views on the subject, and make most licenses irrevocable. The practical effect of such a doctrine would be to make most licenses conveyances of an interest in land by mere estoppel in pais. Ultra as this view manifestly is, if we stop short of it the present appeal can not be maintained. Such a decision would establish the rule that all licenses founded upon a valuable consideration, or necessarily involving the expenditure of money, would be irrevocable, which would practically destroy the distinction between a license and a grant. To go to this extent would be to overrule all this court has ever said on the subject, and place it in direct antagonism with the overwhelming current of authority. This we are not prepared to do.

Rehearing denied.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    The Pennsylvania Company v. Albert Frana.

      Filed at Ottawa November 17, 1884.

    1. Negligence—care required of persons crossing railroad trade. It is the duty of a person about to cross a railroad track, to approach cautiously, and endeavor to ascertain if there is present danger in crossing; and when the railroad track and crossing are so situated that the approach of a train can not be seen, it may be the duty of a person about to cross, to stop and look, to ascertain if a train is coming.
    2. Same—whether proper care exercised—a question of fact-r-of instructions in respect thereto. It is a question of fact for the jury to determine, from the evidence, whether a person receiving an injury from the alleged negligence of another, and who sues to recover therefor, has exercised proper care and caution on his part, and not one of law. It is not for the court to tell the jury that certain facts constitute negligence, and an instruction so telling the jury is erroneous.
    3. In an action against a railway company, the court was asked by the defendant to instruct that if the jury believed, from the evidence, that the plaintiff “ could have discovered the approach of defendant’s train, and avoided the injury in question by having stopped his mule before driving upon the track, and looking and listening for the approach of said train, then he can not recover in this case, unless, ” etc.: Held, properly refused, as it virtually took the question of fact (plaintiff’s care or negligence) from the jury.
    4. In the same case the defendant asked the court to instruct the jury “that those in charge of the train which collided with the plaintiff were not bound to stop the same in anticipation that plaintiff might drive upon the track,” which the court refused: Held, properly refused, as invading the province of the jury, and taking the question of negligence from them.
    5. There may be cases where a railroad company or its servants would be under no obligation whatever to stop its train, and on the other hand there may be cases where a failure to do so would be gross negligence. Whether it is, or not, in a particular case, is a question exclusively for the jury to determine, from the evidence.
    6. An instruction which merely informs the jury that what a person, on approaching a railroad crossing, should do in order to exercise ordinary care for his safety, and what should be done in operating a railway in order to exercise the same degree of care for the safety of others, is a question of fact for the jury to determine, from the evidence, is substantially good, and there is no error in giving the same in an action against a railroad company, to recover damages arising from a collision at a crossing in a public street.
    7. Same— defence that the person injured was aiding in the violation of an ordinance. The fact that a plaintiff injured by a collision with a passing train of a railroad company, was, at the time of the accident, in the employment of a lumber firm who kept more than ten thousand feet of lumber stored in one place without a permit, in violation of a city ordinance, is no defence to an action against the railroad company to recover for the injury caused by its negligence, and evidence of such facts can not have any legitimate bearing on the question of negligence, or the defendant’s liability. Even a violator of the ordinance is entitled to the same protection as any other citizen.
    8. Allegations and proofs—must correspond. If the negligence of a defendant in a suit for an injury is established by the evidence, that evidence must necessarily have been confined to the averments of the declaration, as negligent acts not averred in the declaration can not be proven.
    9. Instructions—as explaining the reason for refusing others ashed. The court gave the jury an instruction on its own motion, in the first part of which was stated the reason why certain instructions were refused: Held, that this was not a proper subject for the consideration of the jury, but as the instruction could not have affected the verdict, the giving of it was no ground for reversal.
    10. Same—instruction construed, as whether leaving jury to determine applicability of an ordinance. In an action to recover for a personal injury caused by negligence, the court instructed the jury that if the plaintiff, while exercising ordinary care to avoid the injury, was injured by the negligence of the defendant, as charged in the declaration, they should find for the plaintiff. One count of the declaration charged the defendant with negligence in failing to have a flagman at the place of the accident, in violation of an ordinance of the city of Chicago: Held, that the words, “as charged in the declaration,” did not leave it to the jury to determine the applicability of the ordinance to the circumstances of the case, and that the instruction was a proper one.
    11. Same—whether the jury are told they may give punitive damages— in an action for personal injury from negligence. In case against a railway corporation for negligence resulting in a personal injury, the court instructed the jury that if they found for the plaintiff, then, in fixing the damages, they should take into consideration all the circumstances as disclosed by the evidence, “such as the circumstances attending the injury." There was no evidence given to authorize exemplary damages, and none were claimed by the plaintiff: Held, that the instruction was not open to the objection that it authorized the jury to give punitive damages under the circumstances, and could not have misled the jury.
    Appeal from the Appellate Court for the First District;— heard in that court on appeal from the Superior Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    This was an action brought by Albert Prana, against the Pennsylvania Company, to recover for a personal injury received by the plaintiff while attempting to cross the railroad track of the defendant with a wagon and team, attributing the accident to the alleged negligence of the defendant’s servants in the management of its train. A judgment in favor of the plaintiff in the trial court was affirmed in the Appellate Court, and the defendant brings the cause to this court on his further appeal.
    Messrs. Willard & Driggs, for the appellant:
    Appellee’s employers were guilty of negligence in two' respects,. viz:
    First—In keeping their lumber yard at the place in question without a permit from the city council, as" required by ordinance. The failure of any person to perform a duty imposed by legal authority is prima facie negligence. Bail-

      way Co. v. Loomis, 13 Ill. 548; Railway Co. v. Terhune, 50 id. 151; Weick v. Lauder, 75 id. 93; Railway Co. v. Berlink, 2 Bradw. 427; Shearman & Redfield on Negligence, sec. 39.
    Second—Appellee’s employers were guilty of negligence in piling their lumber so high on the north-east corner of the yard as that drivers of their wagons coming from the west, and drivers of trains from the south, could not see each the other approach to the point of crossing at said corner. Railroad Co. v. Payne, 49 Ill. 499; Railway Co. v. Larmon, 67 id. 68; Railway Co. v. Maxfield, 72 id. 95; Railroad Co. v. Hillmer, id. 235; Railivay Co. v. Smith, 78 id. 112; Railroad Co. v. Lee, 87 id. 454; Railway Co. v. Pennell, 94 id. 448.
    The negligent conduct of appellee’s employers, as aforesaid, is chargeable to the appellee himself.
    The plaintiff unnecessarily and voluntarily placed himself in known danger. In such case he can not recover compensation for an injury. Railway Co. v. Gretzner, 46 Ill. 755; Railway Co. v. Bell, 70 id. 102; Railway Co. v. Harwood, 80 id. 88; Railway Co. v. Hetherington, 83 id. 510; Railway Co. v. Hart, 87 id. 529; Railway Co. v. Dimick, 96 id. 42; Railway Co. v. Garland, 8 Bradw. 571.
    A railway company will not be held liable for an injury for failing to place a flagman at points not required by law or common usage. Beisiegel v. Railroad Co. 40 N. Y. 9; Weber v. Railroad Co. 58 id. 451; Welsch v. Railway Co. 72 Mo. 451; Kenney v. Crocker, 18 Wis. 74.
    Bailway trains have the preference or prior right to passage, and it is the duty of persons in charge of vehicles drawn by animal power to give way to ears propelled by steam power. Railroad Co. v. Lee, 87 Ill. 454; Hugan v. Railway Co. 15 N. Y. 380; Wilbrand v. Railivay Co. 3 Bosw. 314; Commonwealth v. Temple, 14 Gray, 69; McCarty v. State, 37 Miss. 411; Zimmerman v. Railroad Co. 71 Mo. 476; Railroad Co. v. Damerell, 81 Ill. 450; Pierce, on Railroads, 342.

      Mr. James Frake, and Mr. Charles E. Pickard, for the appellee, after stating the facts, made the following points:
    The plaintiff was bound to exercise only ordinary care. Railroad Co. v. Grimes, 13 Ill. 585; Stratton v. Horse Railway Co. 95 id. 25.
    What constitutes such ordinary care, and what is an absence of ordinary care on the part of the defendant, is a question of fact, to be determined by the jury from all the circumstances of the case, as disclosed by the evidence. Railroad Co. v. Haworth, 39 Ill. 346; Kolb v. O'Brien, 86 id. 210; Garland v. Railway Co. 8 Bradw. 571; Schmidt v. Railway Co. 83 Ill. 405; Railway Co. v. Donahue, 75 id. 106; Railway Co. v. Ryan, 70 id. 211; McClelland v. Mitchell, 82 id. 35; Johnson v. Smallwood, 88 id. 73.
    The absence of the flagman was, at the time and under the circumstances, gross negligente on the part of appellant, because required at that point by city ordinance, and because required at the point, under the circumstances, as a matter of ordinary and usual precaution on the part of the company. Railway Co. v. Dunn, 78 Ill. 197; Kinney v. Crocker, 18 Wis. 74; Welsch v. Railway Co. 72 Mo. 451.
    Even if it were no part of the flagman’s duty to flag appellee, yet his omission to do so was negligence, as he had always done so before, and his absence was a tacit representation that all was right, and virtually an invitation to come upon the track. Lunt v. Railway Co. 1 L. R. Q. B. 277; Stapley v. Railway Co. 1 L. R. (Ex.) 21.
    The absence of the flagman, upon whose presence, when a train was approaching, Frana had been taught to rely, excused him from stopping, in addition to looking and listening, —that is, rendered it unnecessary'at the time as a constituent factor in “ordinary care” and “due diligence.” Railroad Co. v. Tuplett, 38 Ill. 483; Railroad Co. v. Lee, 87 id. 454; Railroad Co. v. Hillmer, 72 id. 235.

      Even if appellee were negligently upon the track, yet if by the exercise of ordinary care and diligence the servants of appellant could have seen him in time to have stopped the train and thus have avoided the accident, a failure to thus stop the train would render appellant liable. Railway Co. v. Kellam, 92 Ill. 245; Springall v. Ball, 4 F. & F. 472; Harlan v. Railway Co. 65 Mo. 22.
   Mr. Justice Craig

delivered the opinion of the Court:

No question is made in regard to the admission or exclusion of evidence. The only question, therefore, to be considered is, whether the law governing the case was properly given to the jury by the instructions of the court.

The court gave two instructions on behalf of the plaintiff, and they are both claimed to he erroneous. The first in substance directed the jury that if they' believed, from the evidence, that the plaintiff, while exercising ordinary care to avoid the injury, was injured by the negligenee of the defendant, as charged in the declaration, they will find for the plaintiff. The second count of the declaration charged the defendant with negligence in failing to have a flagman at the place of the accident, in violation of an ordinance of the city of Chicago, and it is claimed that the words of the instruction, “as charged in the declaration, ” left the jury to determine the applicability of the' ordinance to the circumstances of the case. We think this is a misapprehension of the meaning of ’ the instruction. Whether the railroad was required to keep a flagman at the place of the accident, whose duty it was to flag persons whq attempted to cross the track, was not alluded to or mentioned in the instruction. If the negligence of the defendant was established by the evidence, that evidence was necessarily confined to the averments of the declaration, as negligent acts not averred in the declaration could not be proven,—and we perceive no substantial objection to the instruction;

The second instruction, to which objection is made, declared, in substance, that if the jury believed, from the evidence, under the instructions of the court, that the plaintiff was entitled to recover, then, in fixing the damages, the jury should take into consideration all the circumstances as disclosed by the evidence, “such as the circumstances attending the injury.” Under this last clause of the instruction, counsel for appellant urge that the jury might give punitive damages. There was no evidence introduced on the trial which would authorize the jury to give punitive damages, and by the terms of the instruction they were limited and confined to the evidence in making a verdict. Indeed, so far as appears from the record, there was no pretence on the part of plaintiff that he was entitled to recover punitive damages. As no such claim was made, and as no evidence was offered to establish a claim of that character, the instruction could not have misled the jury.

The court refused defendant’s instruction No. 1, which was as follows:

“The jury are instructed that it is the duty of a person, before attempting to cross a railway track, to stop, if necessary, and look and listen for the approach of trains, before entering upon such track; and if the jury believe, from the evidence, that the plaintiff in this case could have discovered the approach of the defendant’s train, and avoided the injury in question by having stopped his mule before driving upon the track, and looking and listening for the approach of said train, then he can not recover in this case, unless the jury shall believe, from the evidence, that the agents or servants of the defendant were guilty of gross negligence in the operation of said train.”

—And this' decision is relied upon as error. It is no doubt true that it is the duty of a person about to cross a railroad track, to approach cautiously, and endeavor to ascertain if there is present danger in crossing; and where the railroad track and crossing are so situated that the approach of a train can not be seen, it may be the duty of a person about to cross, to stop and look, to ascertain if a train is coming; but it is always a question of fact for the jury to determine, from the evidence, whether the person injured has exercised proper care and caution in crossing a railroad track, and not a question of law. It was the province of the jury to determine whether the plaintiff was guilty of negligence, and not for the court to tell the jury that certain facts constituted negligence. The instruction, as drawn, took the question of fact from the jury, and hence was erroneous, and for this reason the court did not err in refusing it.

The defendant’s ninth instruction, which the court refused, is liable to the same objection. It declared: “The jury are instructed that those in charge of the train which collided with the plaintiff were not bound to stop the same, in anticipation that plaintiff might drive upon the track. ” It was for the jury to determine, from all the evidence, whether those in charge of the train were guilty of negligence in not stopping the train before the collision occurred. Cases might occur where a railroad would be under no obligation whatever to stop its train, and on the other hand cases might arise where a failure to do so would be gross negligence. Each case must be determined by its facts, and those facts are for the jury.

On the trial the defendant read in evidence an ordinance of the city of Chicago, to the following effect: “No person, without first obtaining a permit therefor from the city council, shall hereafter establish or keep any lumber yard, or place for the storing, or piling, or deposit of lumber for sale, in quantities exceeding ten thousand feet, upon any land within the limits of the city, except such land fronts or abuts on navigable water.” The defendant also introduced evidence that Parsons & Foster owned the lumber yard where appellee was employed in hauling lumber, at the time of the accident; that they bought and sold lumber by the cargo, and the average quantity kept in their yard was three millions of feet. It was also proven that the premises occupied as a lumber yard did' not front or abut on navigable water, and it was not proven that Parsons & Foster had a permit from the city, as required by the ordinance. Under this evidence the defendant requested the court to give the following instruction:

“If the jury believe, from the evidence and the instructions of the court, that the lumber yard of Parsons & Foster, located on the corner of Fulton and Canal streets, in the city of Chicago, Cook county, Illinois, did not abut or front on navigable waters, and that said Parsons & Foster stored and kept therein lumber in quantities exceeding ten thousand feet, then the keeping of said yard by said Parsons & Foster was illegal, unless the jury shall find, from the evidence, that the said Parsons & Foster had a permit from the common council to keep said lumber yard; and the hauling of lumber to said yard, and the crossing of the defendant’s tracks for the purpose of hauling lumber, would in such case be illegal and wrongful on the part of the plaintiff, as an employe or servant of said Parsons & Foster. ”

This and several other instructions announcing in a different form the same principle, were refused. We do not think that the ordinance had -any legitimate bearing on the case, or on the rights or duties of the parties. It was doubtless passed to guard against the destruction of property by fire, and had no reference whatever to the duties of a railroad company, or the rights of an individual who might be employed by any one who kept lumber in quantity at a place prohibited by the ordinance whose duties might require him to cross the railroad track. Again, if Parsons & Foster kept a lumber yard contrary to the ordinance of the city of Chicago, that was a matter resting entirely between the firm and the city authorities, and in no manner concerned appellant,—so far, at least, as the railroad was required by law to run its trains. Parsons & Poster, and their employes, were entitled to the same protection in crossing the railroad track, although they kept a lumber yard in violation of the ordinance, as any other citizen of Chicago who might have occasion to cross the railroad track. If appellee had been a trespasser in going upon the railroad track, a different question might arise, but he was not. He had a right to cross the railroad track, which was constructed on a public street, and the company, in operating its trains, was bound to exercise proper care to avoid injury. If we are correct in this view, it follows that the instruction, and others announcing a similar principle, were properly refused by the court.

The court, on its own motion, gave one instruction to the jury, to which exception was taken. In the first part of the instruction the court gave the reason why certain instructions were refused. We do not understand that this was a proper subject for the consideration of the jury; but as the instruction could not affect the verdict, it could do no. harm to appellant, and hence can not be relied upon to reverse the judgment. The latter part of the instruction merely informs the jury that what a person approaching a railroad should do in order to exercise ordinary care for his safety, and what should be done in operating a railway in order to exercise the same degree of care for the safety of others, is a question of fact, for the jury to determine, from the evidence. We perceive no substantial objection to this portion of the instruction.

The judgment will be affirmed.

Judgment affirmed.