Gerke v. Fancher

Mr. Justice Scofield

delivered the opinion of the Court.

The questions presented by this record are such as to render a detailed statement of the evidence unnecessary and therefore unprofitable. It is sufficient to say that the suit was brought by John Fancher, a switchman, who was riding on the side of a moving car at night, and was injured by a heavy board which the servants of appellant had used at the railroad track to raise a wagon loaded with coal out of the mud where it was mired, and which board, according to appellee’s claim, had been negligently left by appellant’s servants, with one end stuck fast in the mud and the other elevated in the air, in dangerous proximity to the railroad track. Appellee obtained judgment for $1,500, and appellant appealed the case to this court.

The first and second assignments of error which relate to the admission and exclusion of evidence have been abandoned.

The sufficiency of the evidence to sustain the verdict can not be questioned for the reason that the bill of exceptions does not purport to contain all of the evidence.

It is insisted, however, that the court erred in giving appellee’s instruction to the jury. One criticism of the instruction is that it submitted to the jury the question of negligence on the part of appellant’s servants, when, as it is said, there was no proof of such negligence. We think there was such proof. Besides, this objection is unavailing when it is remembered that the bill of exceptions fails to show that it contains all of the evidence.

Another criticism is that the language, “ while standing on the side of the car where it was his duty to be,” assumes as true a disputed question; that it invades the province of the jury by telling them that it was the duty of appellee to stand on the side of the car. We think the language is not justly open to this criticism. It means, “ While standing where it was his duty to be,” or “ while standing on the side of the car in the place where it was his duty to be,” neither of which expressions is objectionable as assuming the truth of a disputed fact. The instruction, taken as a whole, correctly announces the law, and, when considered in connection with the instructions given for appellant, can not have had the effect of misleading the jury.

The most serious question presented by the record arises from the alleged failure of the declaration to aver that at the time when appellee received the injury complained of, he himself was exercising due care and diligence for his personal safety. An examination of the declaration shows that it does not contain such an allegation in express terms. But it does set forth facts from which it may be logically inferred that the appellee was not guilty of negligence, and this is equivalent to an express Averment of ordinary care. For instance, it has been held that where one sues the master for injuries sustained through the negligence of his co-employee, he should allege that the two were not fellow-servants; and yet a declaration not containing this allegation, but setting forth such facts as show that the relation of fellow-servants did not exist, has been held sufficient by the Supreme Court. L. E. & St. L. Consolidated R. R. Co. v. Hawthorn, 147 Ill. 226.

The declaration in the case under consideration, after setting forth the negligence of appellant, proceeds as follows: “ The plaintiff avers that in the discharge of his duty as a switchman about three o’clock at night, or in the morning, of the 16th of February, 1892, he was standing on the side of his car where it was his duty to be; and while he was passing along said track on his said car, by the place where said timber was so negligently left standing by the servants of the defendant, and without any warning or notice of danger, and without any knowledge or notice of the presence or position of said timber, his right leg just below the knee was brought into contact with the elevated end of said timber, so negligently placed and left there by the servants of the defendant, and his said leg ivas by said timber pinned against the side of said car and mashed, crushed and torn open.”

It is said, however, that these facts as averred do not show due care and diligence for the reason that appellee might truly have had no actual notice or warning of danger, and yet, by the exercise of ordinary care, he might have had such notice. The declaration shows that the board was left at this place on the 15th of February; that at three o’clock the next morning, which was before the dawn at that season of the year, the accident occurred; that appellee had no actual notice or warning that the timber was there; that he was, at the time, standing where his duty required him to be. In the absence of a demurrer to the declaration or a motion in arrest of judgment, these averments are sufficient to show a prima facie case of due care and diligence, Avithout requiring the appellee to allege that he was, at the time, using a search light to spy out extraordinary and unusual Obstructions. Appellant, citing several cases, among them C. & E. I. R. R. Co. v. Hines, 132 Ill. 161, states the laAV as follows: “A verdict Avill aid a defective statement of title. It will never assist a statement of a defective title or cause of action.” Applying this rule to the declaration in this case, we hold that if there is any imperfection, it is in the nature of a defective statement of the cause of action rather than a statement of a defective cause of action. In the Hines case, the Supreme Court quote approvingly the following from 1 Chitty on Pleading, marginal page 673: “ Where there is any defect, imperfection or omission in any pleading; whether in substance or form, which would have been a fatal objection upon 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.”

This proposition of law is decisive of the present controversy. Appellee was necessarily required to prove the fq,cts defectively stated or omitted, before the judge would have directed the jury to give, or the jury would have given a verdict for appellee; therefore the defects and omissions are cured by the verdict.

The judgment is affirmed.