Opinion of the Court. Messrs. HENRY & READ, for the plaintiff in error. Mr. S. M. SHEPHARD, for the defendant in error. Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court: In November, 1853, the appellant, Linder, owning lands where the town of Mattoon now stands, and being desirous that the Terre Haute & Alton Railway, then in process of construction, should cross the Illinois Central Road at some point upon his land, and thus cause the growth of a town, executed a bond to one Messer, binding himself to convey to Messer an undivided twenty acres for the sum of fifty dollars, upon condition that the T. H. & A. R. Road should cross the Central at or near the center of the section in which the land was situated. Messer at the same time executed a declaration of trust, showing that he was to hold the land for the joint benefit of himself, Carpenter, Tuell, Hunt, and Sanderson. Messer was a contractor upon the road; Hunt, the chief engineer; Carpenter, the chief engineer for this division; and Sanderson was paymaster. In what way Tuell was connected with the road does not appear. The line was established across the land; and, in January, 1854, Linder conveyed an undivided twenty acres to Tuell, Sanderson, and Carpenter. In May, 1855, they reconveyed to Linder, in order that the entire premises in which they held an undivided twenty acres might be laid out into blocks and lots, and in July, 1855, Linder conveyed back to Carpenter certain blocks representing the twenty acres. The town of Mattoon grew up upon this and adjacent tracts. At the October term, 1865, Linder filed his bill in the circuit court against Carpenter, alleging that the above recited contract and conveyance had been obtained from him by fraud, and asking that Carpenter should be decreed to account to him for the proceeds of the lots sold, and to reconvey to him the lots unsold. On the hearing, the court dismissed the bill. Opinion of the Court. We had occasion, in the case of Bestor v. Wathen, 60 Ill. 138, to express our views of contracts of this character made between private individuals and the officers of a railway company acting in their individual capacity. We said, in the opinion in that case, that contracts like the one before us, made between the land owner and the railway officials, in order to establish the line of the road for the purpose of promoting the private advantage of the contracting parties, were against public policy, because tending to cause a sacrifice of the interests of the stockholders and of the public. In that case the land owner had refused to convey, and the railway officials filed their bill to compel a conveyance. We held the contract, one which a court of chancery would not enforce. Our views of the character of such a contract are wholly unchanged; but this case comes before us in a different shape. Here the contract has been executed by the transfer of the title; and more than twelve years after the deed was made, the grantor comes into court and asks that it be rescinded, and the title be reinvested in himself. This is sought upon the alleged ground that the defendant and his co-officials, with whom the contract was made, falsely represented that they could control the location of the line, and threatened, unless complainant and others would convey lands to them, they would cross the Illinois Central several miles further north, when, in fact, as complainant insists, the line of the road was already established where it was subsequently built, at the time the contract was made, and these persons had no control over it. It is urged by counsel for complainant, that, although such a contract may be objectionable, the complainant is not in pari delicto, and, if the victim of fraudulent representations, is entitled to relief. We do not find it necessary to determine whether, if the fraud were proven, we should be constrained to refuse the relief sought, on the ground that the complainant does not come into court with clean hands. It is enough to say that the complainant has not proved the alleged fraud. It is true, the Opinion of the Court. persons with whom he contracted, had no legal power to control the line of the road, and it is impossible that the complainant, who was himself a stockholder in the road, and must have known of the existence of a board of directors, should have understood their representations in that sense. They meant, and must have been understood as meaning, that practically they could determine whether the new road should cross the Central near the center of the section in which the complainant's land was situated, or a mile or two further north or south. As one of these parties was the chief engineer of the road, another the chief engineer of that division, and a third one of the contractors, we can entertain no doubt that it was in their power to exercise a most potent influence upon the exact location of the line. This would necessarily result from their official position; and Sanderson testifies that Hunt, Carpenter, and Messer, controlled its location, and he has no doubt the donation of lands at Mattoon secured the location there. We can discover no fraud in these representations. But it is urged, that at the time the contract was made, the location was already established. This position is not sustained by the evidence. It is true, the contract to build the road had been executed; but that did not define the point for crossing the Central Road; and Sanderson swears positively that the line had not been established when the bond was signed. It is further urged, that from the conformation of the country, the line must necessarily have crossed the Central at Mattoon, and that this fact was known to the engineers and to their fellow-purchasers. It may be true that this was the best route; but it is not proven, and probably is not true, that these parties could not have caused the adoption of a line so far variant from the one agreed upon as to defeat the views of complainant. We see no ground for the rescission of this executed agreement. The railway officials made a contract which they ought never to have made, but there is no satisfactory proof that they practiced a fraud upon the complainant. He was willing Opinion of the Court. Syllabus. to give twenty acres of his land in order to secure the building of a town on the remainder. He accomplished his object, and has realized large profits. Nearly two years after making his first contract, he ratified it by executing a second deed; and for a period of twelve years, acquiesced in the entire transaction. He then concluded he had been defrauded, and brings this bill. Possibly, the rights of the stockholders and the interest of the public may have been sacrificed, but this complainant has no private grief which he can ask a court of equity to heal. 1. RAILROADS relative rights over public crossings. Railroad companies, under their charters, have the same right to use that portion of the public highways over which their track passes as other people have to use the same. Their rights and those of the people as to the use of the highways at such points of intersection are mutual, co-extensive, and reciprocal; and in the exercise of such rights all parties will be held to a due regard to the safety of others, and to the use of every reasonable effort to avoid injury to others. 2. SAME-presumption. It will be presumed that the servants of a railroad company having charge of its trains are cognizant of the road crossings along the line of their road; and when any such crossing is obviously a dangerous one, that the employees of the company knew such fact as well as that persons are liable at all times to be in the act of passing. 3. SAME-diligence measured by the danger. The degree of diligence and care required of railroad companies, it seems, is not fixed by any definite and precise rule, but depends rather upon the facts and circumstances of the case, so that what would be an unnecessary act in one case would be imperatively demanded in another. 4. SAME. It may be that there are places where it would be negligence to construct a road crossing over a highway without making a bridge for 30a 443 62 313 33a 453 62 313 133 153 62 313 153 384 62 313 52a 526 Syllabus. the latter over the railroad track; but at any rate the company must be held to a sufficiently high degree of diligence to overcome, as far as practicable, the danger. 5. NEGLIGENCE-question of fact. The question of negligence is one of fact to be found by the jury. It depends, to a great extent, upon the surrounding circumstances of each case; and unless in case of gross acts of carelessness or failure to observe some positive requirement of law, the courts can not adopt any positive rule on the subject. 6. SAME. Where a railroad is so constructed that the place where it crosses a public highway is unusually dangerous to the traveling public, as where its track intersects the highway in a cut and is approached on the road by descending a hill, and persons approaching the crossing can not see the railroad track owing to brush and bushes until within a few feet of it, and then only a small portion of it, owing to a sharp curve: Held, that a neglect to sound the whistle or ring the bell as required by the statute under such circumstances, would be gross negligence. 7. SAME--speed of train. And where a railroad track crossed a public highway at a place of unusual danger and peril to persons who might be passing over such crossing in the highway, and a person traveling over the same with his wagon and team was struck and injured by a passing train which was running at a rapid rate: Held, that the speed of the train might be considered in connection with the location of the roads and the other surrounding circumstances on the question of negligence. 8. SAME-where plaintiff is also negligent. In case of personal injury from negligence the well established rule of this court is, that the plaintiff will recover even though he was negligent himself, if the negligence of the defendant was so much greater as when compared with that of the plaintiff that the negligence of the latter was slight. 9. SAME--contributory. The well established rule of this court in regard to contributory negligence resulting in injury is, that the plaintiff may recover, notwithstanding he was himself negligent if his negligence is slight when compared with that of the defendant. 10. SAME. In this case the plaintiff, while in the act of crossing defendant's railroad at its intersection of the public highway, was struck by an engine of defendant, attached to a train, and received severe personal injury. The railroad was in a cut and was approached by defendant on the highway by descending a hill. When about sixty-five yards from the track he stopped his team, looked and listened for the train, and neither seeing nor hearing it he proceeded to cross. In approaching, the track was hidden from view by bushes and shrubs until within a few feet of it, and then only a small part of the track could be seen, owing to a sharp curve in it. It appeared that the train was running at an unusual speed. Plaintiff's horses became frightened and unmanageable so that they required his whole atten |