(148 N.E.) 14. Trial 129-Language of appellee's counsel in argument to jury held not to have prejudiced defendant. In action for death of section hand killed in a collision of defendant's trains while he was a trespasser, remarks of counsel for plaintiff in argument to jury that deceased was not a hobo as intimated by counsel for defendant, but was a laboring man in the employ of the company, supporting his family by his work, and that it ill became defendant's counsel to call deceased a hobo, "when they knew better," held not calculated unfairly to have prejudiced defendant. Error to Appellate Court, Third District, on Appeal from Circuit Court, Vermilion County; Augustus A. Partlow, Judge. Action by Louis J. Bremer, administrator, against the Lake Erie & Western Railroad Company. Judgment for plaintiff was affirmed by the Appellate Court, and defendant brings certiorari. Affirmed. H. M. Steely and H. M. Steely, Jr., both of Danville (John B. Cockrum, of Indianapolis, Ind., and J. G. McKay, of Miami, Fla., of counsel), for plaintiff in error. was informed that there was no vacancy, and in a few minutes started to return to Templeton on a special train consisting of an engine and caboose. None of the trainmen knew that he was on the train, which started east from Rankin about 9 o'clock. The road is a single track to East Lynn, about 41⁄2 miles east of Rankin. At the same time another special freight train was coming west, and the station agent at East Lynn received orders from the train dispatcher about 9 o'clock that the two trains should meet at East Lynn, the east-bound train to take the siding. The station agent displayed the signal requiring the engineer on the west-bound train to stop at the station. It was a very foggy morning, but the signal was visible for some distance. The west-bound train went by about 9:10 o'clock without stopping, going 30 or 35 miles an hour. As it came toward the station, its headlight was visible 1,800 or 2,000 feet away. One witness saw the stop signal from a distance of 40 or 50 feet east of the station as the train went by, and another from a distance of 150 feet east of the station. The station agent notified the dispatcher and the latter notified Clark & Hutton, of Danville, for defendant the agent at Rankin, but the extra from in error. DUNN, C. J. The Appellate Court for the Third District affirmed a judgment of the circuit court of Vermilion county for $5,000 against the Lake Erie & Western Railroad Company in favor of Louis J. Bremer, as administrator of the estate of Hilary Shircliff, and on the petition of the defendant the record has been brought here by a writ of certiorari for review. Rankin had already gone. The two trains met about 14 miles west of East Lynn and Shircliff and the fireman of the east-bound train were killed. The engineer of the west-bound train did not testify. The engineer of the east-bound train testified that he saw the headlight of the other train and supposed they were at the East Lynn switch. He first saw Shircliff about 30 seconds before he jumped from his engine. Shircliff was coming over the coal gates from the tender into the cab. The declaration on which the cause was submitted to the jury consisted of three [1] The question on the motion to direct the counts, each charging that the engineer of a verdict is: Do the facts fairly tend to prove west-bound train of the defendant willfully that the act of the engineer in disregarding wantonly, and recklessly ran his train past the stop signal was a willful, wanton, and an order board displaying a stop signal at wrongful act which was the proximate cause East Lynn, a station on the defendant's of Shircliff's death? Shircliff was not a pasrailroad, and that, in consequence of such senger, and was not in the service of the dewillful, wanton, and reckless conduct of the fendant on the train on which he was riding, engineer, the train collided with the engine and had no right to be on the train, but was a of an east-bound train on which Hilary Shir- trespasser. There was no relation between cliff, the deceased, was riding and injured him and the defendant which imposed a duty him so badly that he died. The defendant on the latter to use any care to avoid infiled the general issue and a special plea, to juring him, except the duty to refrain from which a demurrer was sustained. On the willfully or wantonly injuring him. Toledo, trial the defendant moved for a directed ver- Wabash & Western Railway Co. y Brooks, dict in its favor and its motion was overruled. 81 Ill. 245; Toledo, Wabash & Western RailThere was no conflict in the evidence, which way Co. v. Beggs, 85 Ill. 80, 28 Am Rep 613; disclosed the following facts: The defendant Chicago, Burlington & Quincy Railroad Co. v. is an interstate carrier whose railroad runs Mehlsack, 131 Ill. 61, 22 N. E. 812, 19 Am. St. from Sandusky, Ohio, to Peoria, Ill., through | Rep. 17 Illinois Central Railroad Co. v. the villages of Templeton, Ind., and East King, 179 Ill. 91, 53 N. E. 552, 70 Am. St. Rep. Lynn and Rankin, Ill. Shircliff was employed as a section hand on the defendant's railroad, and on Sunday morning, October 15, 1922, went from his home in Templeton as a passenger on a train of the defendant to Rankin to try to get a job as fireman. He 93. [2] It is the position of the plaintiff in error that the deceased was a trespasser on the train of the plaintiff in error, which had no knowledge of the deceased's presence or reason to suspect it, and that it owed no duty to For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes fendant's servants, who were in the manage- [3, 4] The distinction is clearly made that a defendant owes the duty of ordinary care to a trespasser known to be in danger, to avoid injuring him. If by the exercise of ordinary liable for the failure to use such care, but to care injury can be avoided, the defendant is a trespasser, whose presence or whose danger in unknown, there is no duty to exercise ordi him, except to refrain from wantonly or willfully injuring him after his presence in a place of danger was known to the plaintiff in error or its servants. It is necessary in an action to recover damages for personal injuries to allege and prove the existence of a duty on the part of the defendant to protect the person injured from the injury of which he complains, the failure of the defendant to perform that duty, and the resulting injury. McAndrews v. Chicago, Lake Shore & Eastern Railway Co., 222 Ill. 232, 78 N. E. 603; Miller v. Kresge Co., 306 Ill. 104, 137 N. E. 385. The plaintiff in error contends that in this case no duty is shown a breach of which was the cause of the injury, and relies upon the proposition that, because the deceased was a tres-nary care, though there is a duty not to inpasser, the only duty which the plaintiff in error owed him was to refrain from wantonly or willfully injuring him after his presence in a place of danger was known to the defendant or its servants. In its brief many cases are cited to the proposition that after discovery of the presence of a trespasser, and not until then, it is the duty of a railroad company or its servants to avoid willfully or wantonly injuring such trespasser. The proposition stated is not the law of this state and the cases cited do not support it. In most of these cases the injured plaintiff was a trespasser on the track of a railroad company, and there was no charge in the declaration under which evidence of willfulness or wan tonness could have been received, or, if there was such a charge, it was held that the evi dence did not sustain it. Of this character are these cases Illinois Central Railroad Co. v. Godfrey. 71 Ill. 500, 22 Am. Rep. 112; Illinois Central Railroad Co. v. Hetherington, 83 Ill. 510, Blanchard v Lake Shore & Michigan Southern Railway Co., 126 Ill. 416, 18 N. E. 799, 9 Am. St. Rep. 630; Roden v. Chicago & Grand Trunk Railway Co., 133 Ill. 72, 24 N. E. 425, 23 Am. St. Rep. 585; Wabash Railroad Co. v. Jones, 163 Ill. 167, 45 N. E. 50; Wabash Railroad Co. v. Kingsley, 177 Ill. 558, 52 N. E. 931; Illinois Central Railroad Co. v. O'Connor, 189 Ill. 559, 59 N. E. 1098; James v. Illinois Central Railroad Co., 195 Ill. 327, 63 N. E. 153; Illinois Central Railroad Co. v. Eicher, 202 Ill. 556, 67 N. E. 376. In Illinois Central Railroad Co. v. Godfrey, supra, it was held when a trespasser on the track of a railroad company is struck and injured by an engine, the company can be held liable only for wanton or willful injury, or such gross negligence as evidences willfulness. It is said in the opinion: jure him willfully or wantonly, or by such gross negligence as evidences willfulness. The rule is stated in many of the cases cited that the defendant is not bound to anticipate the presence of trespassers on its property or to keep a lookout for them, and that its duty to exercise care to avoid injury to trespassers The rule is equally well settled that for an inbegins only when their presence is known. jury occasioned by the willful or wanton act Co. v. Leiner, 202 Ill. 624, 67 N. E. 398, 95 Am. In the first of these cases the running of a train at a high rate of speed in a crowded tracks so connected with the public street and city, over street crossings, upon unguarded street as to be regarded by ordinary citizens so apparently the continuation of a public of such tracks where persons were known to as located in a public street, along a portion be passing and crossing every day, in viola tion of a city ordinance as to speed and without warning of the approach of the train by the ringing of a bell, was held to be such gross want of care and regard for the rights of others as to justify the presumption of willfulness. In East St. Louis Connecting Railway Co. v. O'Hara, supra, it was considered unnecessary, in order to raise an inference "It is only for wanton or willful injury that of wanton and willful negligence, that there the defendant is here chargeable, or such gross should be ill will directed specifically to the negligence as evidences willfulness. Notwithstanding the plaintiff was unlawfully upon de- plaintiff, or that the defendant's servants fendant's right of way, or not in the exercise should have known that he was in such a poof a legal right, and that his own lack of ordi-sition as to be likely to be injured where they nary care exposed him to the risk of injury, were running the engine in the dark without yet the defendant might not, with impunity, a headlight or a bell ringing, and at a high wantonly or willfully injure him. And if de- and dangerous rate of speed where persons (148 N.E.) were likely to be passing. In Wabash Rail- | with 2 engines and 34 cars, reached that point road Co. v. Jones, supra, it was said: the engineer, seeing in the darkness for the first time the red light on the rear of the "The fact of general use by the public of a track, so as to create a probability of their train standing at the depot, attempted to lesspresence, might make an act, which would otherwise be merely negligent, so reckless as to indicate a disregard for life or a general disposition to do injury." In the cases of Peirce v. Walters, supra, and Chicago Terminal Railroad Co. v. Kotoski, supra, the servants of the railroad company were aware of the position of the plaintiff and his danger, and in the case of Illinois Central Railroad Co. v. King, supra, a brakeman of the defendant discovered the plaintiff stealing a ride on the rods under a freight car, and, as the train was running 6 or 8 miles an hour, ran alongside the car, caught the plaintiff by the coat collar, pulling him out, and, in so doing, the right foot of the plaintiff was run over and crushed so that it had to be amputated. In these cases the defendants were held liable for the willful and wanton acts of their servants. Illinois Central Railroad Co. v. Leiner, supra, is a case of a different character, not different in principle from the present case. It was an action by an administrator for the death of his intestate, who was a freight conductor of the defendant. He had arrived at East St. Louis with his train on a Saturday night, and, desiring to ride to his home in Sparta to spend Sunday, obtained a pass permitting him to ride on a certain passenger train leaving East St. Louis at about 9 o'clock, but too late for him to take the train. He then applied for transportation to the conductor of a freight train, which was not authorized to carry passengers, but the conductor, without requiring any evidence of his right to travel on the freight train, permitted him to do so and he went to sleep in the caboose. While he was asleep in the caboose, the train arrived at Belleville, where, after standing on the main track about 20 minutes, it was run into by a following train running at a high rate of speed in violation of a rule of the company requiring the following train to approach the station at which the first train was standing under control expecting to find the main track occupied, and also in violation of an ordinance of the city of Belleville limiting the speed of the train to 6 miles an hour. The flagman of the train on which the deceased was riding was also required by a rule of the company to go back 3,600 feet and protect the train, but, though the conductor called his attention to the fact that there was an extra train following them and told him to keep his eyes open, the flagman did not go back and protect the train, but got on the train and went forward to the office in the station to get orders. There was a sharp curve about 1,500 feet west of the station, from which there was a downgrade to the station of 1 foot in 100, and when the train, 148 N.E.-55 en the speed of his train, but was unable to do so to any considerable extent, and it struck the standing train, telescoping the caboose and killing the deceased. It was insisted by the railroad company that the deceased was a trespasser. The court, however, did not think it necessary to consider that question, but held that whether he was a trespasser or not, the company would be liable if he was killed through the wanton or reckless conduct of the company's employees. The court held that it was a question of fact to be determined by the jury whether the defer.dant was guilty of willful or wanton conduct causing the injury. In Neice v. Chicago & Alton Railroad Co., supra, it is said that, if persons on depot grounds and platforms provided by the railroad company for the use of the public in the transaction of its business "are there for a legitimate purpose in connection with the business of the company, they have a right to demand the exercise of reasonable care for their safety. If they are simply idlers, loiterers, or trespassers, the duty of the company is only to abstain from willfully or wantonly injuring them. But the duty is owing to an indeterminate part of the public generally, and, if there is a disregard of that duty, one of the general public who happens to be in such position as to be the sufferer from the violation of the duty will have a right of action for any injury he sustains. To run a train in the nighttime over unlighted station grounds without a headlight, and without any warning by bell or whistle, along a platform where persons may reasonably be expected to be, is evidence tending to prove a wanton and reckless disregard of the safety of such persons. In such a case it is not necessary that there should be specific knowledge of an individual on the track or platform or specific ill will toward or an intention to injure an individual." [5, 6] The duty which a railroad company owes to a trespasser before it has knowledge of his presence or danger is not to do any willful or wanton act to injure him. This duty, as was said in the Neice Case, supra, is owing to the public generally, and is applicable to any one of the general public who happens to be in such a position as to be the sufferer by the violation of the duty, and such sufferer will have a right of action for any injury he sustains. The case of East St. Louis Connecting Railway Co. v. O'Hara, supra, is an illustration of this rule, in which it was held that, where the defendant was running its engine in wanton and willful disregard of the rights and safety of the public generally, is was not necessary, in order to raise an inference of wanton and willful negligence, to prove that the defendant's servants were actuated by ill will direct ed specifically toward the plaintiff, or to have | nal, to testify that he told the train dispatchknown that he was in such a position as to be likely to be injured. [7] If there is any evidence in the record fairly tending to show such a gross want of care as indicates a willful disregard of consequences or a willingness to inflict injury, then it is a question to be determined by the jury whether the negligent conduct of the defendant amounted to wantonness or willfulness. Walldren Express Co. v. Krug, 291 Ill. 472, 126 N. E. 97. [8] What degree of negligence the law considers equivalent to a willful or wanton act is as hard to define as negligence itself, and, in the nature of things, is so dependent upon the particular circumstances of each case as not to be susceptible of general statement. The gross negligence which will justify the presumption of willfulness or wantonness is such as to imply a disregard of consequences or a willingness to inflict injury. Lake Shore & Michigan Southern Railway Co. v. Bode mer, supra. [9] An intentional disregard of a known duty necessary to the safety of the person, and 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 constructive or legal willfulness such as charges the person whose duty is was to exercise care with the consequences of a willful injury. 1 Thompson on Negligence, §§ 20, 22. [10] The train was running through a heavy fog at a high rate of speed. It was the duty of the engineer to note the signal to stop for orders, and it was highly important to the safety of the property of the railroad company and of shippers whose goods the trains were carrying, and the lives and safety of the train crews, as well as any other persons who might be on the trains, that the persons in charge of the trains should receive the orders and know that the tracks were clear before they proceeded. It was for that purpose that the signal system was installed, and the observance of the rules in regard to signals was the only safety for persons engaged in the operation of the trains or on the trains. The observance of the duty was essential to the safety of the trains and of all property and persons on them. There was evidence tending to show that the failure to heed the signal was the result of willful purpose, and it was a question of fact for the determination of the jury whether the evidence showed that the negligence of the defendant was of that gross character which evidences will. fulness or wantonness. [11] The plaintiff in error contends that the court erred in permitting the agent at East Lynn to testify that he heard the train dispatcher give the order to the agent at Rankin and heard the latter repeat the order, to give his opinion as to the rate of speed of the train at and after running by the sig | er that the train had run by his signal and that the train dispatcher called the operator at Rankin to inquire if the east-bound train had left. All these things occurred after the train had gone west, and the evidence was of no importance to the issue, but its admission could not have confused the issue or prejudiced the defendant. Complaint is made of instructions given and refused, but the rulings of the court were in accordance with the views of the law which have been expressed. The action was not for mere negligence, but for willful and wanton injury. Whether it was such willful and wanton injury was a question of fact to be determined by the jury. The instructions of the plaintiff in error and its argument here are based upon the theory that there was no duty owing to the deceased until his presence in a place of danger was known and there was no evidence of a willful or wanton injury. In the discussion of the motion to direct the verdict, we have held to the contrary of that theory. [12] It is contended that the court erred in sustaining the demurrer to the special plea, which alleged that Shircliff at the time of his death was not a citizen or resident of Illinois, but was a citizen and resident of Indiana, whose domicile was in Benton county, in that state, where administration had been granted upon his estate by the circuit court of that county; that at the time of his death he owned no real or personal estate in Illinois and no rights or credits that were liable to be dissipated; and that no conditions existed under the law authorizing the appointment of the public administrator of Vermilion county, Ill., administrator of his estate. The probate court has jurisdiction of the appointment of administrators, and its order granting letters is not open to collateral attack on the ground that decedent was not a resident of the county. Balsewicz v. Chicago, Burlington & Quincy Railroad Co., 240 Ill. 238, 88 N. E. 734; Keystone Steel & Wire Co. v. Industrial Com., 289 Ill. 587, 124 N. E. 542. [13, 14] The plaintiff in error contends that the conduct of the attorneys of the defendant in error in the argument of the case was of such a character as to inflame the passions of the jury and prejudice the plaintiff in error in the consideration of the evidence. The only thing objected to as to which there is a ruling of the court which we are asked to review is in connection with the statement of the attorney for the defendant in error that the attorney for the plaintiff in error told the jury that the deceased was a "hobo," and the contradictory statement of the attorney for the defendant in error that the man was not a hobo, but was "an ordinary, honest, humble laboring man, trying to make an honest, humble living for his wife and little baby, as under the law (148 N.E.) he had a right to do, and it ill becomes hired (318 III. 60) Appeal from Champaign County Court; Roy C. Freeman, Judge. Petition by the Trustees of Schools and others to condemn land of Norman C. Hoyt for schoolhouse site. Judgment for defendant, and petitioners appeal. Affirmed. See, also, 311 Ill. 532, 143 N. E. 59. Williamson & Winkelman, of Urbana, and Jones, McIntire & Jones and Hall & Holaday, all of Danville (O. M. Jones, of Danville, and A. R. Hall, of Chicago, of counsel), for appellants. Green & Palmer, of Urbana (Henry I. Green, Oris Barth, and Charles G. Howard, all of Urbana, of counsel), for appellee. DUNN, C. J. This cause was before the court at the December term, 1923. The proceeding was a petition to condemn land for a schoolhouse site. The owner of the land objected to the condemnation, because of the lack of the statutory conditions authorizing the exercise of the power of eminent domain; but his motion was denied, and after a trial a judgment of condemnation was rendered, TRUSTEES OF SCHOOLS et al. v. HOYT. from which he appealed. While other ob (No. 16382.) (Supreme Court of Illinois. June 18, 1925. Rehearing Denied Oct. 8, 1925.) 1. Appeal and error 1198-Trial court, after remand, cannot err in following Supreme Court's direction. Where judgment is reversed and cause remanded, with specific directions as to action to be taken by trial court, under Practice Act, 8 110, it is latter's duty to follow those directions, and it cannot err in doing so. 2. Appeal and error 1097(1) — If lower court substantially followed Supreme Court's directions after remand, judgment must be affirmed. Where only question on second appeal in same case is whether lower court followed di rections of Supreme Court, if lower court substantially followed such directions, judgment must be affirmed. 3. Pleading 433(4)-Defects of substance not aided by statute of amendments and jeofails. Notwithstanding statute of amendments and jeofails by section 1 authorizes amendments before judgment, and by section 2 after judgment, amendments after judgment are authorized in matter of form only in affirmance of judgment, and defects of substance are not aided by the statute. 4. Appeal and error 1097(1)—Judgment of trial court, entered under mandate and direction of Supreme Court, is conclusive. Judgment or decree, entered by trial court in accordance with mandate and direction of Supreme Court, is final and conclusive on all parties, as if it had been entered in Supreme Court. jections were raised on the record, the judgment of reversal was based solely on the lack of power of the board of education to call the election to vote on the proposition to locate and purchase a schoolhouse site, and the judgment of the county court was reversed, and the cause was remanded, with directions to dismiss the petition. On the reinstatement of the cause in the county court, the petitioners made a motion for leave to amend the petition and for another hearing, with leave to introduce further evidence. The defendant made a cross-motion for a judgment dismissing the petition. The court overruled the motion of the petitioners, and entered a judgment for the defendant, dismissing the petition. [1] It has been held in numerous cases in this court that, where a judgment is reversed and the cause is remanded, with specific directions as to the action to be taken by the trial court, it is the duty of that court to follow those directions, and that it cannot err in doing so. Boggs v. Willard, 70 Ill. 315, 22 Am. Rep. 77; Windett v. Ruggles, 151 Ill. 184, 37 N. E. 1021; Roby v. Calumet & Chicago Canal & Dock Co., 154 Ill. 190, 40 N. E. 293 Where a cause is remanded by the Supreme Court, the trial court cannot err if it follows the opinion of the Supreme Court in the further proceedings of the case, and no attention will be given to arguments that it erred in so doing. Manternach v. Studt, 240 Ill. 464, 88 N. E. 1000, 130 Am. St. Rep. 282. "A decree entered in accordance with the directions of this court cannot be erroneous. This court may err in its directions to an inferior court, but, however er For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |