delivered the opinion of the court.
The declaration is in four counts. The first count avers negligence in driving the locomotive against the plaintiff without ringing any bell, or sounding any whistle, or giving any warning, or keeping any look*139out ahead. The second count avers negligence generally in running and operating the engine. The third count sets up an ordinance of the city of Chicago requiring the bell on each locomotive to be rung continuously while running in the city limits, and avers the failure of appellant to comply therewith. The fourth count, as amended, avers that the locomotive was not equipped with air brakes or any proper cab wherein the engineer could keep a proper lookout.
The ordinance of the city was offered by the plaintiff and received in evidence, over defendant’s objection.'
The plaintiff asked and the court gave the following instruction:
“The court instructs the jury that if they believe from the evidence and under the instructions of the court that the plaintiff was in the exercise of ordinary care and caution for his own safety just at and before the injury, and if the jury further believe from the evidence he was injured by or in consequence of the negligence of the defendant as charged in the declaration, then you should find the defendant guilty.”
Errors are assigned by appellant upon the admission in evidence of the ordinance, and the giving of the above instruction.
In behalf of appellee it is insisted that the objections made by appellant to the introduction of the ordinance in evidence were specific, and were not based upon the grounds now urged; and that counsel cannot now be heard to raise new objections for the first time.
If the point depended upon the objections to the evidence we would be inclined to agree with counsel that the objections made do not raise the question of the application of the ordinance to a manufacturer, such as appellant is. But the assignment of error on the instruction above quoted in connection with the evidence and the averment of the ordinance in the declaration brings the point before us for decision.
An examination of the ordinance pleaded and in*140trochiced leaves no doubt in our minds that it was intended to regulate the operation of railroads, as such, within the city limits. This intention is apparent from the general scope of the ordinance, and the particular provisions in each- section. It was not, in our opinion, intended to apply to a manufacturer, who, for his own convenience, and the economy of moving materials and cars of his own build or construction, constructs and operates a railroad track within the limits of his private yards solely.for manufacturing and moving his product.
The evidence shows that appellant is a manufacturing corporation engaged in building railroad freight cars. It is not a railroad, nor is it engaged in any sense in the business of a railroad company. There is no controversy upon this question in the record. The track where appellee was injured was not a railway track within the meaning of the ordinance, although it was of the same width and construction as ordinary railways, and a locomotive was operated upon it for the purpose stated. It was wholly within appellant’s private yard or enclosure. It was not a common or public highway.' It did not cross or run upon a public highway. It was not used for transpor-, tation of freight or passengers for the public. It was used exclusively by appellant, in the processes of manufacture.
The instruction given by the court authorized the jury to apply the ordinance averred in the declaration and introduced in evidence, to appellant, and if the jury believed from the evidence that appellant was negligent of any duty or act required by the ordinance, the jury were directed to find appellant guilty. This was manifest error, for the reason above- suggested,that the ordinance had no application to appellant or its business, or its railway tracks within its private grounds.
Inasmuch as the judgment in this case must be re*141versed and the cause remanded for another trial for the error indicated, it is unnecessary to pass upon, and we refrain from passing upon the question of assumption of risk hy appellee, the question of contributory negligence on the part of appellee, the question of negligence of appellant or any other question raised by the assignment of errors. When the question of fact in this case shall have been properly submitted to a jury, and the case shall be again before us for, review, it may then be necessary for this court to examine and pass upon the questions of fact upon the evidence in such record.
For the errors indicated the judgment is reversed and the cause remanded.
Reversed and remanded.