Statement of Facts.

tracks, used by wagons for hauling materials for filling up the space, and a flagman was stationed there. At this point great numbers of people crossed to the breakwater; from two streets, the public were also accustomed to cross over the tracks from the park to ferry-boats.

From Park Row, at the south end of the park, running north a short distance, the railroad company, in 1872, had erected on the west line of its right of way a five-board fence, the north end of which at the time of the injury to the plaintiff was broken down. The rest of it was in good order.

The park was public ground, free to all, and frequented by children and others as a place of resort for recreation, especially on Sundays. Not far from the south end, and about opposite the end of the fence, was a band-house for free open-air

concerts.

The plaintiff was a boy between eight and nine years of age, bright and well grown, but deaf and dumb. His parents were laboring people, living, at the time of the accident, about four blocks west of Lake Park. Across the street from where they lived was a vacant lot where children in the neighborhood frequently played. On Sunday afternoon, March 17th, 1878, St. Patrick's day, the plaintiff, in charge of a brother about two years older, went to this vacant lot, with the permission of his father, to play; while playing there a procession celebrating the day passed by, and the plaintiff, with other boys, but without the observation of his brother, followed the procession to Michigan avenue at Twelfth street, just south of Lake Park; he and his companions then returned north to the park, in which they stopped to play; a witness, going north along and on the west side of the tracks, when at a point a considerable distance north of the end of the broken fence, saw a freight train of the defendant coming north; turning round toward it he saw the plaintiff on the track south of him, but north of the end of the fence; he also saw a colored boy on the ladder on the side of one of the cars of the train motioning as if he wanted the plaintiff to come along; the plaintiff started to run north beside the train, and as he did so, turned and fell, one or more wheels of the car passing over his arm. There were four

Argument for Defendant in Error.

tracks at this point, and the train was on the third track from the park. The plaintiff had his hands reached out towards the car, as he ran, as if he was reaching after it, and seemed to the witness to be drawn around by the draft of the train, and fall on his back. Amputation of the left arm at the shoulder was rendered necessary, and constituted the injury for which damages were claimed in this suit.

After the evidence in the case had been closed, the court instructed the jury to find a verdict for the defendant, to which ruling the plaintiff excepted. Judgment was entered on the verdict and the plaintiff sued out this writ of error.

Mr. A. D. Rich, Mr. George C. Fry, and Mr. J. W. Merriam for plaintiff in error submitted on their brief.

Mr. Ashley Pond for defendant in error.-There is no statute of the State of Illinois under which it was the duty of the Illinois Central or Michigan Central to fence the right of way at the place of the accident. It is not so claimed by the plaintiff. It is alleged that the duty exists (1) at common law, (2) by force of the ordinance of the city of Chicago granting the right of way to the Illinois Central, and not otherwise.-I. The defendant is not liable at common law for failure to fence the right of way. Vandergrift v. Delaware Railroad Company, 2 Houston (Del.) 287; Alton, &c., Railroad Company v. Baugh, 14 Ill. 211; Boston & Albany Railroad Company v. Briggs, 132 Mass. 24; Richmond v. Sacramento, &c., Railroad Company, 18 Cal. 351; Macon, &c., Railroad Company v. Baker, 42 Geo. 300; Illinois Central Railroad Company v. Reedy, 17 Ill. 580; Williams v. New Albany, &c., Railroad Company, 5 Ind. 111; Henry v. Dubuque Railroad Company, 2 Iowa, 288; Louisville, &c., Railroad Company v. Milton, 14 B. Mon. 75; Louisville Railroad Company v. Ballard, 2 Met. (Ky.) 165; Knight v. Opelousas, &c., Railroad Company, 15 La. Ann. 105; Perkins v. Eastern, &c., Railroad Company, 29 Maine, 307; Stearns v. Old Colony Railroad Company, 1 Allen, 493; Williams v. Michigan Central Railroad Company, 2 Mich. 259; Locke v. First Div., &c., Railroad Company, 15 Minn.

Argument for Defendant in Error.

350; New Orleans, &c., Company v. Field, 46 Miss. 573; Memphis, &c., Company v. Orr, 43 Miss. 279; Gorman v. Pacific Railroad, 26 Mo. 441; Vandergrift v. Rediker, 2 Zabriskie (N. J. L.) 185; Woolson v. Northern Railroad Company, 19 N. H. 267; Chapin v. Sullivan Railroad Company, 39 N. H. 53; Tonawanda Railroad Company v. Munger, 5 Den. 255; S. C. aff. 4 N. Y. 345; Corwin v. New York, &c., Company, 13 N. Y. 42; Kerwhacker v. C. C., &c., Company, 3 Ohio, 185; Railroad Company v. Riblet, 66 Penn. St. 164; Railroad Company v. Skinner, 19 Penn. St. 287; Tower v. Providence, &c., Company 2 R. I. 404; Hurd v. Rutland, &c., Railroad Company, 25 Vt. 116; Stucke v. Milwaukee, &c., Company, 9 Wis. 202. In re Rensselaer, &c., Railroad Company, 4 Paige, 553, contra, has been disregarded and practically overruled by the subsequent decisions in New York cited above. Quimby v. Vermont Central Railroad Company, 23 Vt. 387, also contra, is followed as to the corporation involved in Trow v. Railroad Company, 24 Vt., but the doctrine above set forth is fully recognized in the Iurd case, 25 Vt. 487, cited above, where the company's liability is put wholly upon the ground of the statutory provision.-II. The defendant is not liable under the ordinance referred to in the declaration. (1.) The ordinance and agreement between the city and the railroad company created no liability other than in covenant. The railroad company may be liable for a breach, but the ordinance and agreement cannot be made the basis of liability to a citizen. Atkinson v. Newcastle Water Works Company, 2 Exch. Div. 441. (2.) No default is shown in the performance of the conditions of the ordinance and agreement. Some direction from the council as to the character of the structure was a condition precedent to the obligation of the company to erect it. Lent v. Padelford, 2 Am. L. C. 57, citing Watson v. Walker, 23 N. H. 471; Bashford v. Shaw, 4 Ohio St. 263; Walker v. Forbes, 25 Ala. 139; Vyse v. Wakefield, 6 M. & N. 442; S. C. 7 M. & N. 126; see also West v. Newton, 1 Duer, 277; Coombe v. Greene, 11 M. & N. 480; Brooklyn v. Brooklyn City Railroad, 47 N. Y. 475. (3.) A failure to perform the terms of the ordinance and agreement between the city and the railroad company,

Opinion of the Court.

would give no rights except inter partes. Lowery v. Brooklyn City Railroad, 76 N. Y. 28. (4.) The ordinance imposed no duties towards intruders on the track. (5.) The requirements of the ordinance had no reference to the place of the accident. (6.) The ordinance, dissociated from the agreement between the city and the company, cannot create a civil liability enforceable at common law. The power of the legislature is plenary to compel action on the part of the citizen; but a municipality cannot by ordinance create a civil duty. Van Dyke v. Cincinnati, 1 Disney (O.) 532; Philadelphia & Reading Railroad, v. Erwin, 89 Penn. St. 71; Heeney v. Sprague, 11 R. I. 456; Flynn v. Canton Company, 40 Maryland, 312.-III. There is no evidence that the alleged failure to fence was the proximate cause of the injury.

MR. JUSTICE MATTHEWS delivered the opinion of the court. He stated the facts in the foregoing language and continued : The question of contributory negligence does not appear to us to arise upon this record. It is not contended by the counsel for the defendant in error, that, if there was evidence tending to prove negligence on its part, the case could properly have been withdrawn from the jury on the ground that it appeared as matter of law that the plaintiff was not entitled to recover by reason of his own contributory negligence. The single question, therefore, for present decision is whether there was evidence of negligence on the part of the defendant which should have been submitted to the jury.

The particular negligence charged in the declaration and relied on in argument, is the omission of the railroad company to build a fence on the west line of its right of way, dividing it from Lake Park; a duty, it is alleged, imposed upon it by the ordinance of June 14th, 1852, a breach of which resulting in his injury, confers on the plaintiff a right of action for damages.

It is not claimed on the part of the plaintiff in error that the railroad company was under an obligation, at common law, to fence its tracks generally, but that, at common law, the ques tion is always whether, under the circumstances of the particular case, the railroad has been constructed or operated with

Opinion of the Court.

such reasonable precautions for the safety of others, not in fault, as is required by the maxim sic utere tuo ut non alienum ladas; that, consequently, in circumstances where the public safety requires such a precaution as a fence, to prevent danger from the ordinary operations of the railroad, to strangers not themselves in fault, the omission of it is negligence; and that it is a question of fact for a jury, whether the circumstances exist which create such a duty.

This principle has been recognized and applied in cases of collisions at crossings of railroads and public highways, when injuries have occurred to persons necessarily passing upon and across railroad tracks in the use of an ordinary highway. "These cases," said the Supreme Court of Massachusetts in Eaton v. Fitchburg Railroad Company, 129 Mass. 364, “all rest on the common-law rule that when there are different public easements to be enjoyed by two parties at the same time and in the same place, each must use his privilege with due care, so as not to injure the other. The rule applies to grade crossings, because the traveller and the railroad each has common rights in the highway at those points. The fact that the legislature has seen fit, for the additional safety of travellers, imperatively to require the corporation to give certain warnings at such crossings, does not relieve it from the duty of doing whatever else may be reasonably necessary." It was accordingly held in that case, that the jury might properly consider, whether, under all the circumstances, the defendant was guilty of negligence in not having a gate or a flagman at the crossing, although not expressly required to do so by any statute or public authority invested with discretionary powers to establish such regulations.

And the same principle has been applied in other cases than those of the actual coincidence, at crossings, of public highways. In Barnes v. Ward, 9 C. B. 392, it was decided, after much consideration, that the proprietor and occupier of land making an excavation on his own land, but adjoining a public highway, rendering the way unsafe to those who used it with ordinary care, was guilty of a public nuisance, even though the danger consisted in the risk of accidentally deviating from the road,