box and the running gear and laid down on the iron rods which run lengthwise under the car, and was nearly midway between the ends of the car. After the train started a brakeman climbed down from the side of the car further forward, and as the train was running six or eight miles an hour he ran along by the side of the car where appellee was, cursing him, and reached under the car and caught appellee by the coat collar and pulled him out and threw a stone at him. In doing the act, the right foot of appellee was run over and crushed so that it had to be amputated, and he brought this suit to recover damages for his injury. In the first and third counts of his declaration he alleged that the servant of defendant wantonly, maliciously, and willfully threw him from the train to the ground, and in the second charged that while he was on the train, with the knowledge and consent of servants of the defendant, they forcibly pushed and pulled him from the train of cars to the ground. The general issue was pleaded, and there was a trial, which resulted in a verdict for two thousand dollars, upon which judgment was entered. The appellate court affirmed the judgment.

At the conclusion of the evidence the defendant asked the court to instruct the jury to return a verdict of not guilty, and it is argued that this instruction should have 93 been given because there was a want of evidence tending to prove these essential facts: 1. That the act of the brakeman was willful; 2. That it was within the scope of the duties intrusted to him by defendant, so as to make defendant liable for his act. It is further contended the negligence of plaintiff was the proximate cause of the injury.

The liability of defendant to plaintiff for his injury is not founded upon any duty or obligation imposed by law arising out of the relations of the parties. Duties may arise from contracts or from relative situations in which parties are brought where they have relative rights, and here there was no right or corresponding duty arising out of such relation. Plaintiff was a trespasser, and defendant owed him no duty other than such as it owed to any stranger. But although he was a trespasser he did not forfeit the right which inheres in every person as against every other person, in all conditions, that defendant should not willfully and intentionally inflict an injury upon him. The violation of the corresponding duty not to inflict a willful or intentional injury is usually punished as a public wrong, and the person injured may also recover for the private

injury. Although plaintiff gained no right by being upon defendant's train as trespasser, and was wrongfully there, it was the duty of defendant not to injure him willfully or intentionally: Illinois Cent. R. R. Co. v. Godfrey, 71 Ill. 500; 22 Am. Rep. 112.

There was evidence tending to prove that the act of the brakeman was willful. He pulled the plaintiff from under the cars when the train was running at a speed of six or eight miles an hour, and manifested his feeling and willingness to inflict a needless injury upon plaintiff by cursing him and throwing a stone at him.

The liability of defendant rests upon the further question whether the act of the brakeman was in the course of his employment and authority as a servant of the defendant. If he was acting within the scope of his duty 94 and employment, the defendant would be liable for his act, although willful and malicious: Chicago City Ry. Co. v. McMahon, 103 Ill. 485; 42 Am. Rep. 29. There was no want of evidence to show that the brakeman did the act within the scope of his duty. He testified as follows: "Our instructions are to stop and put them off if we find someone beating their way. . . . . No, sir; when you put a man off the train you do not mean that you jerk him off-kick him off. It means that when we find a man on the train we instruct him that he can't ride, and he gets off. That is as far as our directions run as brakeman." This evidence shows conclusively that it was within the scope of his directions and duties to put trespassers off the train.

The other question, whether plaintiff was negligent, was not relevant to the inquiry. If he had been injured in consequence of the very dangerous position in which he placed himself, his negligence would have barred a recovery. But his injury was not in consequence of the dangers of his position on the rods, but because of the willful act of the brakeman in pulling him off while the train was running. A person is bound to use ordinary care to protect himself against the known dangers of his situation, but the law does not exact of him the exercise of care to protect himself against an intentional injury by another of which he has no notice. No one is bound to anticipate and guard against a willful and intentional wrong such as was com、 mitted in this case. The motion for the peremptory instruction was properly denied.

The remaining complaint made is, that the court gave to the jury the first instruction asked by the plaintiff, as follows: "The

court instructs you that if you believe, from the evidence, that the injury complained of was wantonly and willfully inflicted, as charged in the declaration, then the plaintiff will be entitled to recover, although you may believe, from the evidence, that plaintiff was guilty of some negligence."

95 This instruction is objected to because it purported to state to the jury the conditions under which plaintiff would be entitled to recover and under which they should return a verdict for him, and omitted the requirement of proof that the brakeman was acting within the line of his duty or within the scope of his employment. The law cannot assume, at least as to a subordinate employé on a train who is not intrusted with the general management and control of it, that he has control over passengers or persons attempting to ride, or that he is intrusted by his employer with authority in respect to them or to eject them, and it was necessary to make the proof: 3 Elliott on Railroads, sec. 1255; Farber v. Missouri Pac. R. R. Co., 116 Mo. 81; Corcoran v. Concord etc. R. R. Co., 56 Fed. Rep. 1014. The requirement of such proof was omitted from the statement of what would entitle the plaintiff to recover in the instruction. There were instructions given on the part of defendant which stated the correct rule, but they did not serve to cure admissions in this instruction, which purported to contain all the elements necessary to a recovery. In such a case, the jury may follow either instruction, and if they find all the facts proved which are recited in an instruction purporting to give all the grounds of a recovery, they would be bound to return a verdict according to its directions without proof of the omitted fact. The instruction referred the jury to the declaration, which is said to be specific enough to obviate this objection. We have not held it error to refer to the declaration by an instruction which requires proof of all its allegations, and the practice of making such reference is, perhaps, not infrequent, but it is not to be commended. In Thompson on Trials, section 1027, the learned author, in defining the province of the court and jury, says: "The construction of the pleadings is, of course, always a question for the court. . . . . It is, therefore, the duty of the court to state the issues to the jury, without referring them to the pleadings to 96 ascertain what the issues are. It is error to leave the jury to construe and determine the effect of the pleadings." Again, in discussing the requirements of the law respecting instructions, he says (section 2314): "It is the duty of the court to determine what are the issues, and to state

them to the jury, and it is error to refer them to the pleadings to determine the issues, in whole or in part." Again (section 2582): "Properly, the jury have nothing to do with the pleadings, and argument directed to the pleadings is addressed to the court. . . . . The pleadings are often drawn in technical language, which might not be correctly understood by persons unlearned in the law." In 11 Encyclopedia of Pleading and Practice, 154, it is said: "The clear weight of authority is, that it is the province and duty of the court to state specifically to the jury what issues are raised by the pleadings, and that it is erroneous to refer to the pleadings to ascertain what the issues were; that the construction of the pleadings and the issues raised thereby are questions for the court alone, and not for the jury."

It is a proper office of an instruction to explain the issues and to state to the jury the facts from which a conclusion of law is to be drawn, and that is undoubtedly the better practice. But the reference here to the declaration could not supply the defects, both because there is no averment in the declaration that the brakeman was acting within the scope of his employment or duty or had authority to do the act, and also because the reference embraces nothing except the willful and wanton character of the act. All that it would be necessary for the jury to find would be that the injury was wanton and willful, as the declaration alleged it to have been. The defect in the instruction was not cured in any way, but we do not think the judgment should be reversed on account of it, because defendant was not prejudiced by the omission. The brakeman testified as to his authority and directions, and there was no contradictory evidence. It is not ground 97 for reversal than an instruction assumes as proven a fact conclusively established by the evidence without contradiction: Gerke v. Fancher, 158 Ill. 375; 11 Ency. of Pl. & Pr. 132.

The judgment of the appellate court is affirmed.

RAILROAD COMPANIES-DUTY TO TRESPASSERS.-A railroad company is not answerable to a trespasser on a train for negligence, and owes him no duty other than that of doing him no wanton or willful injury: Richmond etc. R. R. Co. v. Burnsed, 70 Miss. 437; 35 Am. St. Rep. 656, and note; Chicago etc. R. R. Co. v. Mehlsack, 131 Ill. 61; 19 Am. St. Rep. 17, and note. Duty of a railroad company toward trespassers upon the track of a railroad: Lake Shore etc. Ry. Co. v. Bodemer, 139 Ill. 596; 32 Am. St. Rep. 218; Central R. R. etc. Co. v. Vaughan, 93 Ala. 209; 30 Am. St. Rep. 50, and extended note thereto.

AM. ST. REP., VOL. LXX.-7

for taxes imposed on the common property during the joint ownership, and that where the cotenant purchasing at a tax sale is in fault for not making payment on his own moiety, there is no doubt that his purchase cannot be enforced against his companions except as a basis for compelling them to reimburse him for their pro rata of the sum paid to relieve the common property from a common burden: Freeman on Cotenancy and Partition, sec. 158. In Blackwell on Tax Titles, section 571, it is said: "It is a general principle that no person can be allowed to purchase [at a tax sale] who is in a situation of trust or confidence with respect to the subject of the purchase, or where he has a duty to perform inconsistent with the character of purchaser. But where a joint tenant or tenant in common buys an outstanding title which is adverse to the common title, the purchase is not void but subject to the election of the coowners, who must, within a reasonable time, elect to avail themselves of the purchase and offer to contribute their share of the purchase money."

No objection is urged to the tax deed in this case other than the relation of Mrs. Malinowski to the property purported to be conveyed by it forbade her from buying it except for the benefit of all interested with her in the alley. The position of counsel for appellants is that it is to be considered the deed is otherwise effective and valid, and that it operated to vest the title to the alley in Baird, the purchaser at the tax sale, and that Baird, by force and effect of the tax deed, besame seised of the absolute title in fee to the alley, and that the relation of tenants in common which formerly existed was thereby destroyed, 183 and those who had formerly sustained that relation were absolved from all further duty pertaining to it. Black on Tax Titles, section 284, and cases cited by that author, seem to support this view. Mr. Freeman, in his work on Cotenancy and Partition, section 159, says the cases relied upon to support the position "do not represent the true state of the law, because they are directly in conflict with the well-settled rule that a person under any legal or moral obligation to pay the taxes cannot, by neglecting to pay the same and allowing the land to be sold in consequence of such neglect, add to or strengthen his title by purchasing at the sale himself or by subsequently buying from a stranger who purchased at the sale, otherwise he would be allowed to gain an advantage from his own fraud or negligence in failing to pay the taxes. If a long period elapses after the creation of a tax title,