#### Wabash Railroad Company v. Alexander Kingsley.

1. Railroad Companies—Duty Toward Passengers and Trespassers. —A different rule obtains when the relation of passenger and carrier exists where a person is ejected from a train, than where the person is a trespasser or has no right to be on the train. The carrier's duty to the passenger involves the use of the utmost care and diligence which can be bestowed by human skill and foresight, while in the case of a trespasser he must, not be guilty of wanton and willful misconduct to the person ejected. .

2. Same—Recovery by Trespassers.—A trespasser upon railroad propérty can not recover for injuries inflicted upon him unless such injuries are inflicted in a wanton and willful manner.

• Trespass on the Case, for personal injuries. Trial in the Circuit Court of McLean County; the Hon. Colostin D. Myers, Judge, presiding. Verdict and judgment for plaintiff. Appeal by defendant.

Heafd in this court at the May term, 1898.

Affirmed.

Opinion filed October 5, 1898.

Geo. B. Burnett; attorney for appellant; Lillard & Williams, of counsel.

John Stapleton, attorney for appellee.

Mr. Presiding Justice Glenn

delivered the opinion of the court.

This is an action on the case to recover damages in consequence of injuries inflicted on appellee by the agents and employes of appellant. The declaration contains two counts. In the first it is alleged that appellee was upon a ear of appellant’s train, which was in rapid motion, and that the conductor of the train ordered appellee to- alight therefrom; that the conductor, in a willful and wanton manner, used threatening language toward appellee, and made an attack upon him, and with force and violence attempted to throw him from the car, and to escape being thrown from the ca.r, appellee got off the same rapidly while it was in rapid motion, by reason of the threats and intimidations of *237the conductor, and to avoid being thrown off; that in getting off appellee used ordinary care, but was thrówn with great force and violence upon the ground, and received great, serious and permanent injuries, to wit, had his foot bruised,' sprained, and certain bones thereof broken, and had his body otherwise scarred and greatly bruised; that he was ruptured by the fall, and received permanent injuries, etc.

The second count is substantially like the first, with the additional averment that when ordered to get off the train he offered to pay his fare to the conductor.

The case was tried by the court with á jury that returned a verdict for appellee for $700. Upon the overruling oí a motion for a new trial, judgment was entered upon the verdict.

The appellant relies alone" upon his first assignment of errors for a reversal of this case, which is: “ The court erred in giving improper instructions at the instance of appellee.” In his brief he limits his objections to the first, second and fourth instructions of appellee, which are as follows:

> “ 1. The court instructs you that even if you do believe from the evidence that the plaintiff had no right' on that train, and the conductor, in discharge of his duty as manager of the train, undertook to put him off, the law requires the conductor to act in a prudent manner, to exercise due care for the safety of the plaintiff, and if he failed to do so, and in consequence the plaintiff was injured, the defendant is liable.

> 2. The court instructs the jury that if you believe from the evidence that the defendant is guilty of the negligence charged in<the declaration, and that the plaintiff; while in the exercise of ordinary care for his personal- safety, was injured as alleged in the declaration, then you should find the defendant guilty, and assess plaintiff’s damages at whatever you may believe from the evidence the plaintiff has sustained. •

> 4. The court instructs the jury that if you believe from the evidence that the defendant is guilty of the negligence *238charged in the declaration, and that the plaintiff was injured as in the declaration alleged, and that the plaintiff at the time of the injury was in the exercise of ordinary care for his own personal safety, then you should find for the plaintiff.”

It is claimed by appellant that these instructions are erroneous because they authorized the jufy to find for the appellee for the mere negligent act of the conductor, and without regard to appellee’s right to be on the train. In this assertion counsel are mistaken. In the second and fourth instructions the jury were told the appellee could not recover unless he was in the exercise of due care and the defendant was guilty of the negligence charged in the declaration. The negligence charged in the declaration as having produced the injuries on appellee, is alleged to have been inflicted wantonly and willfully. ' The presumption is the jury had the declaration and observed this.

In the fourth instruction the jury are told “ if they believe from the evidence that the injury was committed as charged in the declaration, by the defendant or its servants, while acting within the scope of their employment, in a wanton and willful manner,” etc., directly calling their attention to the fact that before the appellee could recover for the negligence charged in the declaration, it must appear that the injuries received by appellee must have been willful and wanton. If the first instruction is properly the subject of criticism, it is cured by the second, third and fourth instructions given on behalf of appellee.

We fully recognize the doctrine that a different rule obtains when the relation of passenger and carrier exists where a person is ejected from a train, than where the person is a trespasser or has no right to be on the train. His duty to the former involves the use of the utmost care and diligence which can be bestowed by human skill and foresight, while in the latter he must not be guilty of wanton and willful misconduct to the person ejected.

The pleadings in this case, the conduct of the trial, and the instructions given for appellant and appellee, show the *239case was tried upon the theory that appellee was a trespasser and could not recover unless the injuries sustained by him were inflicted by appellant in a wanton and willful manner. The case of C., B. & Q. R. R. Co. v. Mehlsack, 131 Ill. 61, is different from this.

In that case the plaintiff proceeded upon the theory that the legal relation of passenger and carrier existed. In this case, as we have above suggested, there is no such claim.

Believing when the entire series of instructions given for appellee and appellant are read together, there was no harmful error committed, the judgment of the Circuit Court will be affirmed.