Passwaters v. Lake Erie & Western Railroad , 1914 Ill. App. LEXIS 463 ( 1914 )

Mr. Justice Eldredge

delivered the opinion of the court.

Abstract of the Decision. 1. Railroads, § 696^*—sufficiency of declaration, in action for death of child in care of father. In an action for the death of a child who was killed at a highway crossing hy one of defendant’s trains while riding in a buggy with her father, failure of the declaration to allege the age of the deceased child, how and with whom she was riding, and that the father was in the exercise of due care, held not to render the declaration insufficient to sustain a verdict on account of variance between its allegations and the proof, since the child’s age, how and with whom she was riding are simply evidentiary facts which need not he pleaded, and any negligence of the father which might he imputed to the child was sufficiently negatived by the averment of due care and caution on her part, as such averment would also necessarily imply due care and caution on the part of the father. 2. Negligence, § 250*—when giving of instruction requiring due care only on the part of child’s father harmless. In an action for the death of a child while in care of its father, where the case was tried on defendant’s theory of the law that the father was negligent and that his negligence was imputed to the child, the giving of a modified instruction requiring the exercise of due care on the part of the father and not requiring due care on the part of the deceased child, held harmless where all the evidence showed that the child was in the exercise of due care. 3. Appeal and error, § 1241*—when adversary’s instructions cannot he complained of. Appellant cannot complain that the court modified appellee’s instructions to conform to the theory of the law as presented by his own instructions. 4. Appeal and error, § 1238*—when appellant cannot complain of court’s adoption of his theory of case. Where appellant has induced the court to adopt a theory of the law most favorable to himself, he cannot on appeal insist that the court should have adopted some other theory.