O'Connor v. Prendergast , 1902 Ill. App. LEXIS 444 ( 1902 )

Mr. Presiding Justice Freeman

delivered the opinion of the court.

This is a suit for personal injuries alleged to have been suffered by appellee in falling into an area opening from the sidewalk adjoining premises of appellant. It is claimed that the railing protecting the area was by appellant’s negligence out of repair and insecurely fastened, by reason of which it broke while appellee was standing on the sidewalk leaning against it. The injuries appellee claims to have suffered by the fall are in the declaration thus stated: “ The plaintiff’s back was then and there badly hurt and injured, and the plaintiff was then and there otherwise permanently injured both in health and body; that he has suffered and continues to suffer great pain therefrom and was and has been from thence hitherto hindered and prevented from transacting his business and affairs.” The other counts also aver an injury to appellee’s back as the specific cause of complaint and each of them states that it was his back which “ was badly hurt and permanently injured.”

Upon the trial, evidence was introduced tending to show that the only serious injury claimed to have been suffered was to the left leg above the knee, and that this had been operated on three times at two different hospitals since the accident. A physician, called as a witness for appellee, testified that he had examined the latter the day before his testimony was given, the examination extending over a period of about twenty minutes, and that he found nothing , wrong with the back except that the patient stated it was very .painful; but that he found a fistulous opening on the lower third of the left thigh connection with the bone, and that this bone is diseased and incurable except by amputation. This testimony was introduced over the repeated objections and exceptions of appellant’s attorney.

It is contended it was erroneous to permit the introduction of this testimony under the declaration, which in no way advised the defendant that appellee claimed to have suffered any special injury except to his back. The contention is well founded. Appellee was only entitled to recover, if at all, upon the case made in his declaration. The defendant was entitled to know from the declaration what the special character of the injury was for which compensation is sought in damages, that he might be enabled to meet the charge. To hold that a party suing for damages, who has led the defendant to suppose recovery is sought chiefly for alleged injuries to the plaintiff’s back, can at the trial utterly ignore the charge in the declaration and spring evidence that he has suffered an injury of an entirely different character, in consequence of which he must suffer amputation of a leg, and thereby recover such damages as a jury may consider adequate for such prospective loss, is at variance no less with the rules of pleading than of fair play. Nor does the general averment that the plaintiff “ was otherwise internally and permanently injured in health and body,” afford a sufficient basis for such evidence. This general averment is limited and restricted by the special allegation, and the defendant was thereby advised only that he might be required to meet evidence tending to show internal and permanent injuries related to or resulting from the alleged specific injury to the back; such, for example, as might result from the blow or contusion which directly caused the alleged injury to the back." It is true, as stated in W. C. S. R. R. Co. v. Levy, 182 Ill. 525-527, that it is not necessary to allege specially every injury to each part of the body in actions of this character in order to prove them at the trial; but the evidence should tend to show that the injury averred is, “ the natural and proximate cause” of the other injuries for which damages are claimed. It can not be properly claimed that the injury to the back averred in the declaration is in any way the natural and proximate cause or in any way the cause of the injury to the leg sought to be shown by the evidence objected to. When a man specially complains of pain in his back, no one, doctor or layman, expects to find his leg broken. The diseased condition of the leg is not an injury necessarily resulting from the negligence charged in the declaration, nor from the plaintiff’s alleged fall. In Olmstead v. Burke, 25 Ill. 86, it is said: “ It is a rule of pleading that whenever the damages sustained have not necessarily accrued from the act complained of, and consequently are not implied by law, then, in order to prevent surprise on the defendant, the plaintiff must state the particular damage he has sustained or he will not be permitted to give evidence of it.” See also, Miles v. Weston, 60 Ill. 361; City of Chicago v. Crooker, 2 Brad. (Ill. App.) 279-283; Myer & Sons Co. v. Davies, 17 Ill. App. 228-230; Shadock v. Plank Road Co., 79 Mich. 7-11; C., C., C. & St. L. v. Eggman, 71 Ill. App. 42-50; Ebsery v. Chicago City Ry. Co., 164 Ill. 518-523.

A plaintiff can not be permitted to specially aver one cause for recovery of damages, and at the trial prove another entirely different, any more than having averred negligence in one respect, he can introduce evidence to prove negligence of an entirely different character.

It is urged by appellee’s attorney that the errors in admission of evidence were not argued in presenting the motion for a new trial, and were thereby waived. It appears from the record that repeated objections to the introduction of this evidence were made at the trial and overruled.

Appellant’s attorney had thus called the court’s attention to his objection so often that he had a right to presume the court had been fully advised, and had definitely and finally determined the point against him. He might very well have felt that to argue it again in extenso, when it had been so repeatedly decided against him, would seem disrespectful. Under these circumstances it was enough to raise it in his written motion, and thus preserve his rights.- In World’s Columbian Exposition v. Bell, 76 Ill. App. 591, 597, we said : “ A party is not bound to read his motion to the court in extenso, or to comment upon each and every item thereof. Bor is he to be deemed to have waived those points not read or commented upon, provided he has not in some manner deceived the trial court or otherwise waived such points.”

One of the grounds urged upon the motion for a new trial was newly-discovered evidence, the nature of which is shown by affidavits, tending to prove that the diseased condition of appellee’s leg dated back to his boyhood, long prior to the accident complained of, and is to be ascribed to other causes. This showing emphasizes the reason for the rule limiting the right of a plaintiff to introduce evidence except to prove the case made in his declaration.

Other points are discussed in the briefs, which need not now be considered. The judgment of the Circuit Court must be reversed and the cause remanded.