#### Henry A. Pope, Executor, Appellant, v. W. Irving Osborne et al., Appellees.

Gen. No. 5,781.

(Not to be reported in full.)

Abstract of the Decision.

1. Railroads, § 517 * —duty to trespassers. Persons operating railroad trains owe no duty to a trespasser to look out for him and discover his presence in a place of danger, and when he is discovered in a perilous situation the persons running the train owe him no duty except to abstain from wantonly and recklessly injuring him.

2. Railroads, § 531*—duty to trespassers when seen on the trade. Engineer is not required to stop as soon as he sees a trespaser on the track, but, in the absence of anything to warn him to the contrary, *660may assume that he will act as a reasonably prudent man and leave the track to avoid being run over.

*659Appeal from the Circuit Court of Lake county; the Hon. Charles H. Donnelly, Judge, presiding. Heard in this court at the April term, 1913.

Reversed and remanded.

Opinion filed August 2, 1913.

Statement of the Case.

Action by Henry A. Pope, executor of the estate of Mrs. Ethel P. West, deceased, against W. Irving Osborne and others for the benefit of next of Mn to recover for the wrongful death of deceased caused by being struck by a railroad car operated by defendant while deceased was walking along the railroad track. From a judgment finding the defendants not guilty, plaintiff appeals.

Paul MacGuffin and Cooke, Pope & Pope, for appellant.

Bull & Johnson and Charles H. King, for appellees.

*

See Illinios Notes Digest, Vois. XI to XIV, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XIV, same topic and section number.

Mr. Justice Dibell

delivered the opinion of the court.

*6603. Railboads, § 588 * —when question for jury whether aot of motorman was wanton or wilful. Where the evidence shows that a motorman running his car saw deceased walking along the track and blew the whistle and rang the gong without attracting attention of deceased but kept on going without slackening speed until within such distance of deceased he would be unable to stop in time, held, that it cannot be held as a matter of law that the act of motorman was not wanton or wilful or in reckless disregard of human life, and the direction of a verdict for defendant, held, error.

4. Costs, § 33*—when executor not personally liable for costs. In an action for wrongful death, a judgment for costs against the executor personally is improper.