the railroad company liable for his protection as sucb, when he is killed by a collision while he is on the car platform.

3. A conductor's knowledge that someone has boarded his train while in motion by getting on the platform between the tender and baggage car is not sufficient to show that he has accepted him as a passenger, when he does not know who the person is or what he is there for.

(Carter, J., dissents.)

(November 1, 1897.)

Gordon v. Grand Street & N. R. Co. 40 Barb. 546; Hutchinson, Carr. 2d ed. § 566.

Whether or not O'Keefe was a passenger was a question of fact for the jury, and they were fully instructed upon that question.

PPEAL by defendant from a judgment of Chicago, B. & Q. R. Co. v. Mehlsack, 131 Ill. 62.

Without any proof of the cause the jury might justly find that a collision, on the same track, of two cars or trains of a passenger carRe-rier is due to the negligence of the carrier.

affirming a judgment of the Circuit Court for Union County in favor of plaintiff in an action brought to recover damages for the alleged negligent killing of defendant's intestate. versed.

The case sufficiently appears in the opinion. Messrs. William H. Green and James Fentress for appellant.

Messrs. William A. Schwartz and Karraker & Lingle, for appellee:

Appellant should be held liable in this action for damages, because deceased was killed through what the law presumes to have been negligence on the part of appellant.

Pittsburg, C. & St. L. R. Co. v. Thompson, 56 Ill. 141; North Chicago Street R. Co. v. Cotton, 140 Ill. 494; Byrne v. Boadle, 2 Hurlst. & C. 722; Scott v. London & St. K. Docks Co. 3 Hurlst. & H. 596; Lavis v. Wisconsin C. R. Co. 54 Ill. App. 641; Carpue v. London & B. R. Co. 5 Ad. & El. N. S. 747.

The law calls upon appellant to show and prove by a preponderance of the evidence that the accident resulted from a cause for which it should not be held liable. Even where no special relation like that of passenger and carrier exists between the parties.

North Chicago Street R. Co. v. Cotton, 140 Ill. 494.

A passenger who goes from one car to another of a moving train to find a seat does not, while so upon the platform, take the risk of collision with another train.

North Chicago Street R. Co. v. Boyd, 57 Ill. App. 536; West Chicago Street R. Co. v. Martin, 154 Ill. 529.

The jury properly found appellant was guilty of the greatest and grossest negligence.

Chicago & N. W. R. Co. v. Trayes, 33 Ill. App. 307; Lake Shore & M. S. R. Co. v. Brown, 123 Ill. 162.

O'Keefe was not a gratuitous passenger. Hutchinson, Carr. 2d ed. § 564; Philadelphia & R. R. Co. v. Derby, 55 U. S. 14 How. 468, 14 L. ed. 502; Jacksonville S. E. R. Co. v. Southworth, 135 Ill. 253.

Cartwright, J., delivered the opinion of the court:

This case was before this court on a former appeal, and the judgment appealed from was reversed. Illinois Č. R. Co. v. O'Keefe, 154 Ill. 508. The case has been again tried, resulting in a verdict and judgment for $3,000, and the appellate court has affirmed that judgment. The facts will be found stated in the former report of the case, and will not be repeated in full in this opinion. The ground upon which defendant was charged at the trial with liability for the death of O'Keefe was that he became a passenger on defendant's train from Anna to Carbondale, and was killed through the negligence of defendant in the collision with the other train. At the close of the evidence the defendant asked the court to instruct the jury that such evidence was not sufficient to authorize a verdict for the plaintiff, and that Hutchinson, Carr. 2d ed. § 653; Werle v. Long they should find the defendant not guilty. The Island R. Co. 98 N. Y. 650; Noland v. Brook-instruction was refused, and the defendant exlyn City & N. R. Co. 87 N. Y. 63, 41 Am. Rep. 345.

Dewire v. Boston & M. R. Co. 148 Mass. 343, 2 L. R. A. 166; Stewart v. Boston & P. R. Co. 146 Mass. 605.

It was a question for the jury, under all the circumstances, whether or not O'Keefe was using proper care.

O'Keefe was riding on the platform by the permission of the company, and he could not be charged with contributory negligence in doing so.

Hutchinson, Carr. § 654: Lammert v. Chicago & A. R. Co. 9 Ill. App. 388.

Judgments of the trial court will not be reversed where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict.

Shevalier v. Seager, 121 Ill. 569.

cepted. The contention here is that the instruction should have been given, because the evidence did not fairly and legally tend to prove that deceased was a passenger, or that he was exercising ordinary care and prudence when killed, while it was necessary for the plaintiff to establish both these propositions by some affirmative evidence in order to recover.

Considering the latter of these propositions first, a reference to the opinion of the court upon the former appeal shows that the judg ment was reversed for error of the court in instructing the jury, as matter of law, that it was

Care and negligence are questions of fact for not negligence, of itself, for O'Keefe to ride on

the jury.

Lowry v. Lynch, 57 Ill. App. 323.

the steps or platform of the car. It was further said that an assumption of negligence on

the part of the defendant, or that the deceased | are the places where passengers present themwas not negligent, could not be stated, under selves to take passage. While this train was the facts of the case, as a matter of law. The at the station at Anna, it was prepared for the evidence did not greatly differ in the two trials, reception of passengers desiring to be transand we adhere to the previous holding that on ported to other stations by opening the doors, the question of negligence the case might prop- and passengers for Anna were discharged at erly have been submitted to the jury. the station. When the doors are closed, a It was also necessary for the plaintiff to person on the outside cannot get in, and when prove that the relation of passenger and carrier the business at that station had been done the existed between the deceased and defendant. doors designed for the admission of passengers This relation, which was claimed to exist, is a were closed, and the train left the station as a contract relation. A railroad company holds solid train, closed and inaccessible up to the itself out as ready to receive and carry, and is platform next the tender in front of the baggage bound to receive and carry, all passengers who car. When the train was moving from the offer themselves as such at the places provided station, O'Keefe took his hat, and ran out of the for taking passage on its trains, and who take door, and ran to the railroad track, and south such passage in the cars provided for passen- towards the approaching train. When he met gers. When one so presents himself, the con- the train, it was going 3 or 4 miles an hour, tract relation under which he acquires the and he climbed on the platform next the tenrights of a passenger may be either express or der at the front end of the baggage car. As may be implied from the circumstances. If a he passed his house, his wife saw him standing person goes upon cars provided by the railroad on the platform, with his back against the company for the transportation of passengers baggage car door. The engineer and conductwith the purpose of carriage as a passenger or saw him climb on the platform, but did with the consent, express or implied, of the not see him afterwards, and the conductor railroad company, he is presumptively a pass- did not know who he was. He was not seen, enger. 4 Elliott, Railroads, § 1578. Both after his wife saw him, until he was found parties must enter into and be bound by the dead, sitting on the step of the platform, holdcontract. The passenger may do this by ing the guard rail with one hand. When putting himself into the care of the railroad found he had a piece of paper in one hand, and company, to be transported, and the com- a pencil was lying on the ground. After leavpany does it by expressly or impliedly re- ing Anna, the conductor went through the ceiving him and accepting him as a passen- train, commencing at the north end of the ger. The acceptance of the passenger need first passenger coach next the baggage car, and not be direct or express, but there must going the entire length of the train. He then be something from which it may be fairly came back, unlocked the door to the baggage implied. One does not become a passenger car, and went in, as he said, to see about the until he has put himself in charge of the car- person who got on the platform, and, seeing rier, and has been expressly or impliedly re- the other train approaching, he and the baggage ceived as such by the carrier. Bricker v. man jumped off through the side door. The Philadelphia & R. R. Co. 132 Pa. 1; Webster question is whether these facts fairly tend to v. Fitchburg R. Co. 161 Mass. 298, 24 L. R. establish the relation of passenger and carrier A. 521; 4 Elliott, Railroads, 1581. Deceased between O'Keefe and the defendant by showwas the holder of a free pass on the road, but ing that he had put himself in the care of that fact alone would not create the relation of the defendant as a passenger, and had been passenger and carrier. The purchase of a ticket expressly or impliedly received and accepted does not make one a passenger unless he comes as such by the defendant through any authorunder the charge of the carrier, and is accepted ized agent. We think that they do not. for carriage by virtue of it. If a ticket holder did not go upon the train at the station proshould offer himself as a passenger, and should vided for the reception of passengers, and be refused transportation, there would be a did not take any place provided for the reliability for consequent damages; but it would ception, accommodation, or carriage of pasnot be a liability to him as a passenger, or on sengers. He did not comply with any of the account of the relation of passenger and carrier, ordinary customs under which defendant held but would be a liability for the refusal to enter itself out as ready to receive and carry pasinto that relation, and to permit him to become sengers, or under which they are received or a passenger. The uncontroverted evidence carried. It is said that he no doubt tried to bearing upon the question whether O'Keefe open the baggage-car door, and the inference became a passenger was as follows: He lived intended is that he tried to put himself in about 300 yards north and 50 yards east of de-charge of defendant as a passenger in a proper fendant's station at Anna. The limited vestibuled train on defendant's road came from the south, and stopped at the station, while he was sitting at the table at home eating breakfast. The train consisted of a baggage car, two coaches, and a sleeping car. It was a solid vestibuled train, the vestibules filling the spaces between the cars, with a door at each entrance and exit to and from the platforms of the passenger coaches. These doors are opened at the stations to discharge passengers who have reached their destination and to receive those desiring to become passengers, and these

He

place. There is no evidence of the supposed fact, and, if there were, it could make no difference. It will certainly not be claimed that defendant was bound to have the baggagecar door open so as to give access to its passenger coaches by way of the baggage car; but, even if that were a wrong to him, he could not become a passenger by attempting to get in that door any more than if he had attempted to open one of the vestibule doors, which was locked, and had failed. He had not put himself in the care of the defendant as a passenger. Of course, the fact that the

court cannot set aside the finding of the jury. So, also, in my opinion, is the judgment below conclusive upon the question whether he was a passenger or not. That is equally a question of fact under the evidence. When the jury found that O'Keefe was not a trespasser, and was in the exercise of due care for his own safety, and when this court confirms that finding, it logically follows, as it appears to me, that he was rightfully on the train as a passenger, for there was no pretense that he was there in any other capacity. The evidence shows that O'Keefe had a contract with appellant to deliver to it a large number of railroad ties, and in connection with this contract had received from the company a pass over its road to enable him to travel to and from different points in carrying out the terms of the contract. He had occasion frequently to pass over appellant's road, using this pass, and sometimes, with knowledge of the trainmen, riding in the baggage car. For purposes connected with his contract relating to the delivery of ties, it became important on the morn

engineer knew that deceased climbed upon the train would not make him a passenger, since an engineer is not authorized to act for the defendant in such a matter, or to accept passengers. Nor do we think that the mere fact of the conductor knowing that someone had boarded the moving train on the platform between the tender and baggage car, and might still be there, is evidence tending to show that defendant accepted him as a passenger. The conductor did not know who he was, or what he was there for, whether as a passenger or otherwise. As conductor, he performed the usual duties after leaving the station, and had not reached this platform next the tender when the accident occurred. He had done nothing in the matter one way or the other. The train was moving slowly when O'Keefe climbed on, but that fact is only material on the question of negligence on his part in boarding a moving train. The train had left the station, and there would be no difference, so far as creating a relation of passenger and carrier was concerned, whether he got on there or at some other place being in question that he should take the train tween stations where the train was moving upon which he afterwards met with the accislowly. Of course, he might have ridden on dent at Anna for another station on the road. the platform in safety but for the collision, Failing to get to the depot in time to take and so, also, he might on the engine or ten- the train, he was compelled, to avoid being der or elsewhere on the train where passen-left, to climb on the forward platform of the gers are not carried. That fact concerns only baggage car while the train was passing him, the question of negligence, and is not material and was moving at the rate of 3 or 4 miles an on the question whether he became a passen- hour; the train being a fast one, and the pasger. As we have concluded that there was no senger coaches vestibuled. The engineer and evidence tending to establish one necessary conductor saw him get upon the train, but the element for a recovery, that deceased was a conductor testified that he did not know at the passenger on defendant's train,-it follows time that it was O'Keefe; but he did not do that for such failure of proof the instructions anything to indicate that he objected to the asked should have been given. carrying of O'Keefe in the manner now complained of. About fifteen minutes after the train had left Anna, the collision occurred in which he was killed. The deceased was found sitting upon the steps crushed between the forward end of the baggage car and the tender. Whether, after getting upon the train, he could have passed through the door at that end of the baggage car, and by that means have proceeded to the passenger coaches, was a controverted question under the evidence. It is apparent that O'Keefe entered upon the train for the purpose of taking passage and of becoming a passenger. He was not injured in the act of boarding the train, so that it was immaterial whether he got upon the train at the station or afterwards, when it was in motion, unless it could be considered as affect

The judgments of the Appellate Court and Circuit Court are reversed, and the cause is remanded to the circuit court.

Carter, J., dissenting:

I do not concur in the decision rendered by this court in this case. It is held, as it was held when this cause was before us at a former term (154 Ill. 508), that it was a question for | the jury to determine whether the deceased was himself guilty of negligence or not, and the judgment below is not reversed for lack of evidence showing due care on his part for his own safety. So far I am satisfied with the decision, but I dissent from the conclusion reached that there was not sufficient evidence to go to the jury tending to prove that the deceased was a passenger on appellant's training the question whether, by getting upon the when he was killed. It is established that the collision of the two trains which caused O'Keefe's death was caused by the negligence of appellant. This question is not controverted, but this, the second judgment for appellee, is reversed on the sole ground that, considered as a question of law, not of fact, O'Keefe was not a passenger at the time of the accident. It seems clear to me that, if he was not a passenger, he was a trespasser. If not, what was his relation to the company? Now, if he was a trespasser, he was guilty of negligence in getting upon the train under the circumstances shown by the evidence and riding on the platform as he did; but it has been twice held in this case that that was a question of fact upon which this

train where he did, he became a passenger
or not; and that would be a question of fact
settled in the appellate court. The jury were
authorized from the evidence to find that he
did all he could under the circumstances to
become such passenger; that he had the right
of passage on the train; that he was upon
the train with the implied consent of appellant;
and that while on such train, and before he
could enter a passenger coach provided for
the carriage of passengers, he was killed
through the negligence of appellant.
If they
so found, then I think it follows that they
must have found that he was a passenger.
The jury had the right to find from all the
circumstances, including the fact that, after

Lawrence W. POTTS, et al., School Directors, health, and unless such necessity is shown it

public school of their district, and the other an The record presents the question whether or action of trespass to recover damages for the not the state board of health, or the appelexclusion of appellees from such school. The lants, as such school directors, acting under cases were tried together upon the following its orders or otherwise, had any power to imfacts agreed upon, viz.: Jennie Breen and pose, as a condition of the admission of appelJim Breen, appellees, were the children of lees to the public schools, the requirement of Michael Breen, a resident and taxpayer of vaccination; and, further, if such power exdistrict No. 5, township 2, range 12, Lawrence isted, and could be enforced as a police regucounty, Illinois, of which district the appellation, for the preservation of the public lants were directors. These directors acting under a certain rule and order of the state board of health, made a general order, applicable to all schools in their district, requiring that all pupils should be vaccinated before being admitted to such schools. They also employed a physician to vaccinate the pupils, and instructed and ordered the teacher of the school in question to impart no instruction to appellees until they should comply with said order; and appellees were refused admission to the school on the sole ground that they had failed and refused to comply with such order, the father of appellees absolutely refusing to permit his children to be vaccinated. The directors acted in good faith, under the belief that they were performing a duty imposed upon them by law, and used no direct force upon appellees, but simply denied them admission to the school, after repeated refusals to obey the orders relating to vaccination. In their answer to the petition, the directors al leged that the state board of health made and promulgated the following order: "Resolved, that, by the authority vested in this board, it is hereby ordered that on and after January 1, 1882, no pupil shall be admitted to any public school in the state without presenting satisfactory evidence of proper and successful vaccination;" and that at the January meeting. 1894, the said state board of health passed the following resolution: "Resolved, that the power of the state board of health, under the law creating said board of health, to order the vaccination of all school children, is clear and unquestionable. The consequent duty of the board of school directors to see that such order is strictly enforced in their respective districts is equally clear, and the said order of the board of health is their sufficient authority for so doing." These orders of the state board of health were sent to the superintendent of schools of said Lawrence county, and were by bim transmitted to the appellants, with written directions of the state board of health to enforce the same; and appellants made an order that all children attending the said school in their district should be vaccinated, or should show a physician's certificate of previous vaccination, as a condition of attendance upon the said school. The trial court rendered judg ment against appellants, granting the peremp tory writ of mandamus as prayed, and assessed appellees' damages in the trespass case at one cent. These judgments have been affirmed, on appeal, by the appellate court, and appellants have prosecuted this appeal to this court. So far as the record discloses, appellees had not been exposed to infection by smallpox, but were in perfect health, and there was no reason for their exclusion except that they had not been vaccinated. There was no epidemic of smallpox prevailing or apprehended in the vicinity of the school.

health, and to prevent the spread of contagious and infectious diseases, was the regulation and its enforcement, under the facts appearing in the record, a reasonable one? Section 2 of the act creating the board of health (Laws 1877, p. 208), is as follows: "The state board of health shall have the general supervision of the interests of the health and life of the citizens of the state. They shall have charge of all matters pertaining to quarantine, and shall have authority to make such rules and regulations, and such sanitary investigations, as they may from time to time deem. necessary for the preservation or improvement of public health; and it shall be the duty of all police officers, sheriffs, constables, and all other officers and employees of the state to enforce such rules and regulations, so far as the efficiency and success of the board may depend upon their official co-operation." Section 3 provides that the board of health shall have supervision over the state system of registration of births and deaths, as hereinafter provided." They shall make up such forms and recommend such legislation as shall be deemed necessary for the thorough registration of vital and mortuary statistics throughout the state. The secretary of the board shall be superintendent of such registration." Section 4 makes it the duty of all physicians and accoucheurs to report to the county clerk "all births and deatbs which may come under their supervi sion, with a certificate of the cause of death, and such correlative facts as the board may require in the blank forms furnished as hereinafter provided." Section 8 requires county clerks to render complete reports of all births, marriages, and deaths to the state board of health; and § 9 requires the board of health to prepare the necessary forms. Section 12 provides for an annual report by the board to the governor, "and such report shall include so much of the proceedings of the board, and such information concerning vital statistics, such knowledge respecting diseases, and such instruction on the subject of hygiene, as may be thought useful by the board for dissemination among the people, with such suggestions as to legislative action as they may deem necessary.' By reference also to the act of the general assembly to regulate the practice of medicine in this state, which was passed at the same session of the legislature, and which makes reference to the state board of health, and provides for the examination and licensing by said board of persons desiring to practice medicine, it clearly appears that one of the most important duties of the board was to ascertain and certify to the qualifications of practising physicians and surgeons, and to detect quacks, and to prevent them and all ignorant pretenders from imposing upon the sick and helpless. It is clear that no such power as claimed by the state board of health has been conferred upon it, unless by