This was an action on the case, against the Illinois Central railroad company, for running their train of cars over the plaintiff’s team, at a road crossing. The accident and injury are alleged to have been caused by the careless and negligent conduct and management of the train. The evidence showed that the company’s servants were in charge of the train, and was conflicting as to whether the accident arose from the willful act of the company’s servants, from their carelessness, or from the fault and recklessness of the plaintiff. The court, on the part of the plaintiff, gave the following instruction:
“ If the jiuy believe, from the evidence, that the defendants were driving an engine along their track, .across a street, and that, while so doing, they drove said engine against the team of plaintiff, they are liable for the damages then and there done by said engine to said team, whether the injury was committed willfully or accidentally. That it was the duty of the defendants so to use their own rights as not to injure others; and unless the plaintiff wantonly placed or continued his property in the way of destruction, he is entitled to damages, to be assessed by the jxuy, for the injury done to it, whether it be willfully, carelessly or accidentally done. But if the jury believe, from the evidence, that the plaintiff, or his agents or servants, by his or their carelessness, negligence or misconduct, contributed to the accident, then the defendants are not liable.”
If the running over the plaintiff’s team was a mere accident, happening without the fault of the company, or the negligence of their servants, they are not liable for the injury; and if the injury was caused by the mere willful act of the company’s servants, and not in execution and furtherance of the business in which they were employed, the company is not liable in this form of action. Case cannot be maintained against a corporation for injuries willfully and intentionally committed by its servants, and not produced in the course of their employment, in doing the business for which they are employed. It is for the negligence, unskillfulness, or carelessness of the servant, where the injury is attributable to the conduct of the servant or agent, that the master or principal is liable in an action on the case. 1 Chitty’s PL 127, 128, 129, 130, 131 and 132; Fuller v. Voght, 13 Ill. R. 278; Armstrong v. Cooley, 5 Gil. R. 509.
Judgment reversed and cause remanded.
Judgment reversed.