Sherwood v. Rieck , 1902 Ill. App. LEXIS 821 ( 1902 )

Mr. Justice Freeman

delivered the opinion of the court.

It is first contended by appellant’s attorneys that the “ third additional count of the declaration is insufficient to sustain any judgment whatever.” At the close of the evidence, appellant moved the court, in writing, to instruct the jury to find a verdict of not guilty as to each count of the declaration. This motion was granted as to all except the third additional count, and the jury were instructed accordingly. As to that count the motion was denied, and it is contended that in denying the motion and refusing to instruct the jury to disregard that third additional count the court erred.

It is provided in the practice act (R. S., Chap. 110, Sec. 51), that “ if one or more of the counts in a declaration be faulty, the defendant may apply to the court to instruct the jury to disregard such faulty count or counts.” This was the practice pursued in the case before us. The count in question, after stating that the machine and the surroundings were dangerous, charges that it was the duty of the defendant to warn plaintiff of the dangerous character and dangers surrounding the machine, which were unknown to plaintiff, but that defendant carelessly, negligently and improperly failed and neglected so to do, so that by reason of the premises the plaintiff, while engaged in work on the machine and using all due care and caution, “ was pushed or thrown and precipitated upon and against said machine,” and thereby injured. It is evident from examination of this count that no causal connection is therein shown between the alleged failure to warn of what are said to have been the dangerous character and surroundings of the machine, and the alleged force which it is said threw the plaintiff against it and .inflicted the injury. Ho matter how dangerous the machine and surroundings were, if in fact the plaintiff was thrown upon the machine by some outside force, the accident was not the result of the defendant’s negligence in failing to warn that the machine itself was dangerous. It is charged that “ by reason of the premises,” that is, of the alleged dangers, and the failure to warn the plaintiff of them, the latter was thrown on the machine. But how or by what means he was so thrown is not stated; and the fact that a machine would be dangerous to one thrown upon it when it is in motion does not necessarily imply any duty to warn an employe of such a patent fact. Most machinery operated by power would be dangerous to one forced into it, but in such case the forcing cause and not the machine would be the proximate cause of any injuries thereby inflicted. This declaration does not state a single fact, however, indicating in what respect the machine in question was dangerous, nor why or how it became the duty of the defendant to warn plaintiff that he was or might be liable to be “pushed, thrown or precipitated upon and against ” it, nor wherein the plaintiff’s injuries were the result or in any way the consequence of the alleged failure of the defendant to warn him. For all that appears, the plaintiff may have been thrown against the machine by some malicious stranger, whose act the defendant had no reason to anticipate and for which he was in no way responsible, and which would not have been prevented, no matter how frequently or explicitly the plaintiff had been warned of the alleged dangerous character and surroundings of the machine itself. See Hinchliff v. Rudnick, 70 Ill. App. 148-150. In other words, the declaration does not charge, nor state facts which imply, that the accident and the resulting injury were the natural and proximate consequences of the act complained of, namely, the failure to warn the plaintiff of the alleged dangerous character of the machine and surroundings. It rather implies the existence of an intervening efficient cause, which itself became the proximate cause of the injury. C. & E. I. R. R. Co. v. Mochell, 96 Ill. App. 178-182. That the declaration fails to present a state of facts implying any actionable negligence on the part of the defendant is, we think, unquestionable. As is said in C. & A. R. R. Co. v. Clausen, 173 Ill. 100-105, “ It is not sufficient in a declaration to allege that it is the duty of the defendant to do certain things, but the declaration must state facts from which the law will raise the duty. (Ayers v. City of Chicago, 111 Ill. 406.)” In Funk v. Piper, 50 Ill. App. 163-164, Justice Gfary remarks : “ Elementary principles are constantly disregarded in declaring in actions for negligence. Many cases come before us in which the declarations allege simply that it was the duty of the defendant to do the thing described, or that the defendant was negligent in not doing it, in either case without aver- ■ ment or recital of facts or circumstances from which the law will imply, and therefore the court determine, that such duty existed.”

It is urged, however, that any defects in this declaration are cured by the verdict. The rule in this respect, briefly stated, is, that while a verdict will cure a defective statement of a good cause of action, it will not supply the want of a statement of any cause of action at all. In C. & A. R. R. Co. v. Clausen, supra, on page 103, it is said: “ At the common law, independently of any statute, the rule was and is ‘ that where there is any defect, imperfection or omission in any pleading which would have been a fatal objection on demurrer, yet if the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated or omitted, and without which it is not to be presumed that either the judge would direct the jury to give or the jury would .have given the verdict, such defect, imperfection or omission is cured by the verdict.’ (1 Chitty’s Pl. 673.) This rule was quoted and approved in Keegan v. Kinnare, 123 Ill. 280, and C. & E. I. R. R. Co. v. Hines, 132 Id. 161. The intendment in such case arises from the joint effect of the verdict and the issue upon which it was given, and if the declaration contains terms sufficiently general to comprehend, by fair and reasonable intendment, any matter necessary to be proved, and without proof of which the jury could not have given the verdict, the want of an express statement of it in the declaration is cured by verdict. Under this rule a verdict will aid a defective statement of a cause of action, but will never assist a statement of a defective cause of action. (1 Chitty PI. 681.) ” We are of opinion that this declaration was not aided by verdict.

It is urged that as the objection goes to the sufficiency of the 'declaration, it should have been taken advantage of on demurrer, and that it is too late to urge it after verdict, citing Chicago, Burlington & Quincy R. R. Co. v. Harwood, 90 Ill. 426. Without stopping to state the very evident distinction between the declaration in that case and that under consideration here, it is sufficient to say, quoting again from the Clausen case, supra (p. 102): “ While the defendant, by pleading over, waived its demurrer and the right to assign error upon the ruling of the court on the demurrer, it did not waive innate and substantial defects in the declaration which would render the declaration insufficient to sustain a judgment.” In the case before us there was no demurrer, but the principle stated is equally applicable. World’s Columbian Exposition v. Republic of France, 91 Federal Rep. 64-69; see also, C. & E. I. R. R. Co. v. Hines, 132 Ill. 161-166.

While we are of opinion that the declaration fails to state a cause of action, and can not therefore be aided by verdict, the objections to- it were sufficiently preserved, independently of the motion in arrest of judgment. A motion was made at the close of all the evidence, to direct a verdict for the defendant. Such1 motion raises the question whether there is evidence which, with all the inferences justifiably to be drawn therefrom, is sufficient to sustain a verdict for the plaintiff should such a verdict be returned. Boyle v. I. C. R. R. Co., 88 Ill. App. 255-257, and cases there cited. In the present case there is undisputed evidence tending to show a different state of facts from that charged in the declaration. It appears from appellee’s own statement that he was not thrown or precipitated against the machine by reason of any failure of the appellant to warn him of the dangerous character of the machine or surroundings, but that he fell or slipped from a box he had himself procured, without direction or suggestion from any one, and had placed by the side of the machine to stand or sit upon. Bo failure to warn of the alleged dangerous character of the machine was responsible for this fall, and the box, however dangerous in that particular place, for the use to which it was put, was not a part of the machine nor of its “ surroundings.” It was foreign to its purpose, uses or design. The undisputed evidence, therefore, does not tend to sustain the cause of action stated in the declaration and “ a party who has no cause of action can not sustain a judgment in his favor.” C. & A. R. R. Co. v. Clausen, supra, p. 105.

It appears that the court refused to instruct the jury to disregard the count of the declaration under consideration. This refusal is assigned as error. We are of opinion that the plaintiff had a right to have the jury instructed to disregard this third additional count of the declaration. It is said, in Consolidated Coal Co. v. Scheiber, 167 Ill. 539-542, that only such faults in a count of the declaration as would render it insufficient to support the judgment can be reached under the provision above referred to, contained in the fifty-first section of the practice act, by instructions to disregard such count. “ All others are waived by taking issue upon it; for the general rule is, that all defects appearing upon the face of the pleading are waived by taking issue upon it instead of demurring, except such as show that there is no cause of action or such as are not cured by verdict.” The defect in this declaration is that it fails to show a cause of action.

The judgment of the Superior Court must be reversed and the cause remanded.