The opinion
JENKINS, Circuit Judge
(dissenting). The court upholds the right of the plaintiff in error to recover under the first of the additional counts filed at the trial, and upon the evidence shown by the record, if the jury should find, upon such evidence, that the railway company was guilty of negligence. This is the only count of the declaration upon which judgment can be rested. This count charges that the railway company operated and moved a locomotive, with two freight cars attached, upon a certain railroad track, alongside of and over and across which track “lay and ran a well-known and generally and publicly used path and passageway for pedestrians, in which path and passageway plaintiff was then and there walking as she and the public were accustomed therein to walk,” and that while she was so walking therein, along the path across the track, the railway company, by its servants, “did so negligently, willfully, recklessly, wantonly, and carelessly”’ move and run the* engine against the plaintiff that she was injured, etc., which injury occurred through the “willful and wanton negligence and conduct of the defendant,” to her damage, etc. The accident occurred within the private -switching yard and grounds of the railway company. -There was no evidence of a public highway, and the most that the evidence *291 tended to prove was an implied license to cross the private ground and tracks of the railway company. This count of the declaration fails, however, to plead any such license, in that it is not therein averred that the use of the path was with the knowledge and consent of the company. Burg v. Railway Co., 90 Iowa, 106, 112 , 57 N. W. 680 . This count was drafted with an imperfect comprehension of, or without regard to, the law of negligence. There is no such thing as ‘"willful negligence.” Negligence excludes the idea of willfulness. Negligence is the omission of a duty, not the commission of a willful act. Railwav Co. v. Tartt, 24 U. S. App. 489. 12 C. C. A. 618, 620 , and 64 Fed. 823 . These “vituperative adjectives” impart no force and give no effect to the declaration. If the count can be said to (unbrace a charge that the railroad company, through its servants, willfully ran its cars against the plaintiff in error, it is enough to say that the; record is absolutely wanting in any evidence to support such charge, but proves to the contrary. If it can be upheld to charge? negligence in the management of the train, or in the failure to discharge some duty owing to the plaintiff in error, because of an implied license to cross the track, it. is sufficient to say that it neither specifies the duly, nor declares wherein there was failure io discharge the duty. The couni may properly be characterized as a collection of “vituperative adjectives.” The second additional count pleads an act of negligence subsequent to the act charged in the other counts, disiinct therefrom, resulting in further injury, and constituting another cause of action. This count was filed more iluin two years subsequent to the injury, and io it the Illinois statute of limitations was pleaded. The action on dmt count was barred, Phelps v. Railway Co., 94 Ill. 557 ; Railway Co. v. Wyler, 158 U. S. 285 , 15 Sup. Ct. 877.
2. We have held in Elevator Co. v. Lippert. 24 U. S. App. 176, 11 C. C. A. 521 , and 63 Fed. 942 , that a licensee who enters upon the premises of another by permission only, without allurement, inducement, or invitation hold out to him by the owner or occupant, cannot recover damages for injury caused by obsiructions or excavations. He acts at his own risk, and enjoys ¡he license subject to its attendant perils. Thus, in Bolch v. Smith, 31 Law J. Exch. 201, where workmen were permitted to use a place as a way, oil which revolving machinery had been erected, it was ruled Gnat the right so to use the place was only the right: not to be treated as a trespasser, and that there uas no obligation to fence the machinery, and no liability for insufficiently fencing it. While, however, the licensee takes the privilege subject to the perils arising from the condition of the premises, and from the nature of the business as there ordinarily carried on, the licensor must refrain from doing any further act to endanger the safety of the person exercising the license. The proposition is thus si a it'd in Gallagher v. Humphrey, 6 Law T. (N. S.) 684, by Wright man, J.:
‘"It appears to mo that such permission as is hero urged may lie subioot to the qualification that the person giving it shall not bo liable for'injuries io persons using the way, arising from the ordinary state of things, or of fire ordinary nature of the business carried on; but that is distinguishable from *292 the case of injuries wholly arising from the negligence of that person’s servant.” '
There must not be, as stated by Chief Justice Cockburn in the same cáse,' superadded negligence, in addition to existing dangers. With this explanation, and possible limitation, I think the case of Railway Co. v. Tartt, 24 U. S. App. 489, 12 C. C. A. 618 , and. 64 Fed. 823 , decided by this court, correctly states the law. The difference between that case and the one in hand is this: There the implied licensee was walking along the track; here she was attempting to cross the track. There the implied license was exercised but by few persons; here, by a multitude daily, — morning and evening. Whether, under the circumstances here existing, a duty was imposed upon the railway company to operate its trains otherwise than in accordance with the ordinary method of operation before and at the time of the license; whether the license was not subject to such ordinary method of operation; whether, by reason of the license, a duty was imposed upon the railway company to give warning of the approach of a train to the way so granted, such as is by statute required at a crossing of a public highway; whether any other duty was imposed than that of active watchfulness to avoid injury to those upon or about to cross the track upon the licensed way; and whether the duty of warning arises until it is manifest that one is about to cross the track, — are questions upon which the courts are not at agreement, and which, as I think, are not presented by the pleadings, and, for reasons hereinafter stated; are questions not necessary to be considered at this time. The majority opinion would infer a license here because “no earnest efforts were made, nor efficient means shown to have been employed, to cause people to desist from passing that way, though a few rods of fence along the east side of Packers avenue, it is apparent, would have been sufficient for the purpose.” This railway company had no right to erect fences upon the land of another. The property where it is said a fence should have been erected belonged to the Union Stock-Yards Company. If there were legal or moral duty resting upon any one in this respect, it was a duty devolving upon the Union Stock-Yards Company, and not upon the defendant in error, which had no control over the premises. It was not possible or feasible for the railway company to have inclosed its own tracks, part of the network of rails, to keep out the multitude. Nor do I see in what manner the five or six thousand persons daily crossing the track could have been prevented from so doing, except by the maintenance of a constabulary force. The law does not impose upon the owner such a duty towards trespassers, nor does his failure to employ physical force to prevent trespass operate as an implied license. It certainly was not neglect of duty to omit, uor can a license be inferred from failure, to erect a fence upon the land of another. I am not impressed with the correctness of the doctrine of vicarious punishment, applied to mundane affairs.
3. Upon her own evidence, and upon the testimony of her witnesses, it is clear, as matter of law, that this injury happened through the negligence of the plaintiff in error. The locality was one of great danger. To go over the course, she was obliged to cross a network *293 of tracks, about 15 in number, diverging through the switch yard, and converging at the crossing of Packers avenue. She had traveled this course, morning and evening, for two years. She knew and understood all the dangers of that very dangerous locality. She states:
“These engines switching back and forth would pull cars out, and shove them in, on the different tracks. In going there, from west of the hog chute to Packers avenue, you were liable at any time, morning or evening, to meet several engines and trains working in there. That was a daily occurrence, day and night, during the two years 1 went there. In attempting to cross these tracks, I could not tell before. I got there on what particular track 1 would meet switch engines and trains. Could only tell by looking-up and down the track, east and west, before I stepped on it.”
Upon the occasion in question she left Transit avenue at or near the overhead hog chhte, crossed a railroad track, and turned into the irregular space intervening between the north track of the Chicago, Milwaukee & St. Paul Railway Company and the track to the north of it, owned by some other company. She walked along that space to a point 15 or 20 feet west of the low switch stand, and then turned towards the south to cross the network of tracks. At that point the width of this irregular space was l()°/io feet, and, walking along the space, she was from 4. to 5 feet distant from the north, rail of the track upon which she met her injury. At some little distance east of the switch she had met the switch engine which was pushing cars to the east. As she turned to cross the track, and when within five feet of it, she looked to the east, and thought the engine was standing still. Without stopping or again looking, she went upon the track, walking slowly, and as she stepped upon it she was struck by the engine coming westward. This is her relation of the facts, corroborated by some of her witnesses. The witness Boh-ringer, who testified in her behalf, states that she looked towards the engine when she was'15 or 20 feet east of the switch, and was about to look again as she stepped upon the track and was struck. The switch engine did not proceed eastward more than 125 to 150' feet from the place of the accident. The witnesses vary upon the question, some stating the distance1 to be 35 feet. Upon stopping, the engine was immediately reversed, and commenced to back, and, upon reaching the place of the injury, had attained a speed of not more than from four to six miles an hour. The fireman, sifting in his cab window as the engine proceeded westerly, saw the plaintiff, and so soon as slie turned, indicating a purpose to go upon the track, gave the proper signal, and yelled to the engineer, and every possible effort was then made to stop the engine. If only the duty of active watchfulness was imposed upon the railway company before a purpose to cross the track was manifested, that duty was discharged. The operatives of the train had right to assume that one would not attempt to cross the track without looking and listening for a coming train, and would stop (Railroad Co. v. Miller, 25 Mich. 279 ),— as much right to assume that the girl, from the common instinct of self-preservation, would so govern her conduct, as a traveler upon the public highway has the right to rely upon the giving of statutory signals at a crossing. If no duty was cast upon the railway company until it was apimront that the girl was about to attempt the *294 crossing of the track, the duty then devolving was fully performed. The engine was brought to á full stop within the distance of its length. The girl, struck by the tender, was found between the driving wheels of the locomotive. There can be no doubt that the girl was mistaken in supposing that the engine was standing still, if she looked, as she states, when she turned to go upon the track. If she looked, as Bohringer relates, when she was 15 or 20 feet east of the switch, it is probable that the engine was at that moment not in motion. At a speed of 6 miles an hour, the engine was traveling not more than 3 feet to her' 1 foot. So that when she turned in her course to go upon the track, and was 5 feet distant therefrom, the engine could not have been more than 15 feet from the place of the injury. It is inconceivable that then, seeing the engine, she should have indulged the mistake that it was not in motion. The look which she gave was a passing glance. She did not listen, and it was her duty to listen as well as to look. Attempting to cross this network of tracks constantly occupied by switching engines going in both directions, in this place of extreme danger, — which may appropriately be termed the “jaws of death,” — her duty was not fulfilled by the giving of a casual glance. It was her duty to look carefully, to listen carefully, and to stop unless the way was clear. Assuming that her narration of facts is the correct one, she was delinquent in duty, in failing to look and to listen and to stop before she ventured to put foot upon the railway track. There was no obstruction to the view. Had she properly used her senses, she could not have failed to see the coming train. It was close upon her. If she mistook the situation, when the exercise of care would have revealed it, her error, and fcs resulting injury, ought not to be visited upon another. If the narrative of the facts by the witness Boh-ringer be the correct one, and she only looked when 15 to 20 feet east of the switch, she was equally negligent in failing to look and to listen or to stop before she ventured upon the track. That one so fully apprised of the dangers surrounding her should have been so thoughtless of her own safety can only be explained upon the theory that she had become habituated to, and regardless of, the danger which daily confronted her. However much she may be entitled to our sympathy for her misfortune, the law cannot hold such conduct to be the exercise of ordinary care, or permit her to recover, without disregarding well-settled principles of law, and without tendering a premium to reckless conduct. Under the circumstances, it was the duty of the trial court to withdraw the case from the jury and to direct a verdict. Railroad Co. v. Houston, 95 U. S. 697 ; Schofield v. Railway Co., 114 U. S. 615 , 5 Sup. Ct. 1125; Elliott v. Railway Co., 150 U. S. 245 , 14 Sup. Ct. 85; Railway Co. v. McDonald, 152 U. S. 262 , 14 Sup. Ct. 619; Nolan v. Railway Co., 91 Wis. 16 , 64 N. W. 319 . The facts considered were proven by the appellant, and are without contention. The law, applied to the ascertained facts, declares her conduct negligent, precluding recovery. There is no inference to be indulged by court or jury, and therefore there was no issue to be submitted to the jury.
The court declines to consider this question of contributory neg- *295 ligenee because! it appears from the record that the trial court based its direction for a verdict upon {mother ground, and that, to review the decision upon any other ground titan that given for the ruling, the action of this court would he primary, and not in review of something done below. I ant constrained to dissent from that conclusion. We are concerned with the correctness of the ruling of the court, not with the reason given for that ruling, except so far as it may guide us to a correct conclusion upon the reason assigned for the ruling. The exception and the assignment of error go to the ruling, not to i he reason stated for the ruling. If it is clear that the ruling was rigid., although the reason assigned for the ruling was wrong, we are not called upon to reverse a judgment founded upon a correct ruling. Our action in affirming a correct ruling rendered upon an erroneous ground would not be, as the court assumes, primary. It would be a review of something done below, — a review of the ruling of the court below. It is conceded that, if no reason were assigned, we should affirm the ruling, if, in any view of the evidence, the ruling was correct. The direction of a verdict brings here, under proper exception and assignment of error, the whole case for review. If it appeared clearly that the direction was right, the ruling should be affirmed, notwithstanding an erroneous reason given for the ruling. If the appellate! court, in an instance in which it is authorized to review the entire case, can see that, for any cause1, the party ap-l>ealing ought not to prevail, it is the merest formality, and a useless formality, to reverse! because the1 trial court, adjudging rightly, placed its judgment upon doubtful or erroneous ground. This is so, also, without regard to which party had the burden of proof thereon. The vital question concernís the* correctness of the ruling, the! whole case considered. All else is formal and inconsequential. If a trial court gives a wrong reason for a correct conclusion, the error is ei harmless one1, resulting in no injury to the party. We are concerned here not so much with abstract principles or reasons as with injuries resulting to the party from the application of them. In Swager v. Lehman, 63 Wis. 399 , 23 N. W. 579 , certain testimony was ruled out upon a ground that the supreme court thought not to be valid; but, being admissible upon other ground, it held the railing correct, and affirmed the judgment. In Brobst v. Brock, 10 Wall. 519 , the court, observed:
“It would ho idle to reverse tlie judgment, and send the case back for a now trial, if it. be certain that the plaintiff cannot recover in the action.”
In Barth v. Clise, 12 Wall. 400 , the court says, citing a number of previous decisions in (hat tribunal:
"The plaintiff's in error, according to their own showing, had not a shadow of a right to recover in this action against Clise. Conceding, for the purposes of this opinion, that the court below erred in «11 the particulars complained of, tho errors have done them no harm. Opposite rulings could not have helped them. Their case was inherently defective. The defect was incurable, and Inevitably fatal. When such a defect exists, whether it be or be not brought to the attention of the court below, or of this court, by counsel, it is our duty to consider it, and to give it effect.”
In Decatur Bank v. St. Louis Bank, 21 Wall. 294, 301 , the trial court instructed erroneously upon the effect of one letter as consti *296 tuting a guaranty; but another letter in evidence was held by the appellate court to lead to the same result, and therefore the judgment was affirmed, the court observing, ‘‘The result is right, although the manner of reaching it may have been wrong.” In McLemore v. Bank, 91 U. S. 27, 28 , the court said that it was unnecessary to consider whether, in all respects, the charge of the circuit court to the jury was correct, because the record showed the case of the plaintiff to be so fatally defective that the judgment below would not be reversed for instructions, however erroneous. In Lancaster v. Collins, 115 U. S. 222, 227 , 6 Sup. Ct. 33, it is said, “No judgment should be reversed in a court of error when it is clear that the error could not have prejudiced, and did not prejudice, the rights of the party against whom the ruling was made.” In Wisner v. Brown, 122 U. S. 214 , 7 Sup. Ct. 1156, the court said it was unnecessary to consider the validity of the ground upon which the trial court directed a verdict, because “there was another ground upon which the court of trial might unquestionably have instructed the jury to find a verdict ‘for the defendant.” In West v. Camden, 135 U. S. 507, 521 , 10 Sup. Ct. 838, the court said it was unnecessary to examine the correctness of a certain instruction to the jury, “for, even though that might have been an erroneous instruction, it did no harm to the plaintiff, because he could not recover in any event.” In Aerkfetz v. Humphreys, 145 U. S. 418 , 12 Sup. Ct. 835, the court affirmed the judgment, not only upon the ground of the ruling below, but also and mainly upon the ground of want of negligence, which ground the trial court had not passed upon. The distinction sought to be drawn in the majority opinion here would not seem to have been considered by the supreme court to be of force. For the reasons stated I dis: sent from the judgment of the court.