Chicago, Burlington & Quincy Railroad v. Wilcox ( 1882 )

Pillsbury, P. J.

The first point made by appellant is that the plea of the Statute of Limitations stands admitted upon the record for want of replication.

The record shows that the parties went, to trial without any objection that the issues were not joined, and in such case, where a general denial of the facts stated in the plea would constitute a proper replication, we think the rule announced in Strohm v. Hayes, 70 Ill. 41, should be held to apply, and that a formal issue upon the plea is to be treated as waived.

The appellant had it in its power to compel the plaintiff to file a replication to the plea under a rule of the court, if it had so desired; and if the plaintiff had refused to obey the rule, then the plea would have stood as an admitted bar to the action, and the appellant would have been entitled to a judgment so declaring.

It is next objected that the bar of the statute is complete as the summons was not served until the 27th of September, 1880, the evidence showing that the injury was inflicted on the 19th of September, 1878.

The summons was issued on the 16th of September, and there is nothing in the record showing why that date should not be taken as the time of the commencement of the suit as against the Statute of Limitations.

Ordinarily the issue of a summons .is the date of the commencement of a suit and if any cause exists in a given case why that date should not apply, the party relying upon the Statutes of Limitations should make such cause apparent.

The principal objection, however, to the recovery is, that there is a fatal variance between the allegations of the declaration and the proofs upon which such recovery was based.

The primary object of a special count in a declaration is to apprise the defendant of the true grounds upon which the plaintiff claims to recover and give him notice of what he will be called upon to meet upon the trial.

The declaration in this case counts upon the negligence of the defendant in moving, propelling and operating the train, at the time the plaintiff was alighting therefrom as the proximate cause of the injury sustained by him.

Treating the verdict as settling the facts in favor of the plaintiff it would seem that the plaintiff was injured by the wrongful act of the conductor in shutting the door upon his hand and at the same time pushing him off the car.

At this time he was not about alighting from the car, but having refused to get off without the train was stopped, was endeavoring to regain his place within the car when he was prevented by the company’s servant.

It can scarcely be said that any one reading this declaration would suppose that it was intended by the plaintiff to rely upon proof of the willful act of the conductor in forcing him from the car, as a ground of recovery.

If the conductor thus wrongfully thrust the plaintiff from the car it was a breach of his master’s contract of carriage that might under the authority of C. & E. I. R. R. Co. v. Flexman, 9 Bradwell, 250, affirmed in 103 Ill. 546, render the company liable under a declaration properly counting upon the facts; but we think that such a liability is not properly pleaded under an averment of negligence in the operation of the train.

The running of the train was not the primary cause of the injury, for it is evident that the plaintiff would have regained the car if left to himself, and would have been safe from personal injury even if carried beyond his destination.

In I. W. & W. Ry. Co. v. Briggs, 85 Ill. 80, it was held error to allow evidence tending to show that the accident was caused by the high rate of speed the train was run, when the declaration averred the injury to have been produced by a defective wheel, defective tics and the unskillfnlness of the company’s servants.

In City of Bloomington v. Goodrich, 88 Ill. 558, which was an action on the case to recover damages for personal injuries received in consequence of a sidewalk being out of repair, the declaration alleged the defect in the walk to consist in “ some of the planks being broken so that large and deep holes were in said walk and the surface of the same became, and was, very rough, irregular and uneven,” and the proof failing to show that any of the planks were broken, but the only defect was that two of the planks had been removed from the walk, it was held that the variance was fatal.

So, where the declaration alleged that it was the duty of the city to so carefully keep and maintain a street and swing a bridge as to protect persons using the same from danger, and on account of negligence of the city in that regard, the plaintiff, while traveling upon said street, was necessarily and unavoidably thrown down upon said bridge and street, and was caught between the said bridge and abutment of the street, whereby he was injured, and the proof showing that he, of his «own volition, jumped upon the bridge while it was in motion, and fell while attempting to jump off the bridge, and thereby received the injury, the variance was held substantial, and the plaintiff failing to recover in the court below, the judgment was affirmed for this reason : Gavin v. Chicago, 97 111. 66.

The variance between the allegations and proofs in the cases above cited appear to be less clearly marked than in the case before ns, and we consider them conclusive upon this question.

Certainly, the proof in this case is a substantial departure from the alleged cause of the inj ury, and which materially affects the defendant below in preparing its defense, and we can not affirm the recovery in this case, without ignoring the rule so frequently and uniformly announced by our own court of last resort.

If we were to consider the testimony introduced by the defendant as establishing the facts in the case, the same difficulty arises, for jt shows that the plaintiff, of his own volition, jumped from the train while running, without being influenced in such action by the servants of the company.

As in our opinion, there is a fatal variance between the allegations and proofs, the judgment will be reversed and the cause remanded.

Judgment reversed.