Citation Numbers: 103 Ill. App. 496
Judges: Worthington
Filed Date: 9/11/1902
Status: Precedential
Modified Date: 7/24/2022
delivered the opinion of the court.
It is urged as error, that the court refused to admit in evidence the declaration, plea and judgment of the Circuit Court in January, 1892, in a suit by plaintiff in error against the St. Louis, Alton & Terre Haute Railroad Company for overflowing the land in question, by reason of the trestle-work and bridge complained of in the present case.
It is claimed that this judgment is conclusive as to the liability of defendant in error, as a lessee of the St. Louis, Alton & Terre Haute Railroad Company, upon the allegation of the improper construction of the bridge trestle, and the consequent effect in overflowing plaintiff in error’s land.
If the record of the former judgment was competent at all under the declaration, upon which point we do not pass, it was competent as evidence in chief. It was discretionary with the court to admit this evidence in favor of plaintiff after defendant had rested his case, but it was not error to refuse to admit it as evidence in rebuttal. He can not complain because he was not allowed to split his evidence by offering a part of it in chief to prove his case, and a part in rebuttal.
It is urged that the court erred in submitting the following special interrogatory to the jury:
“ Was the rain storm which fell on May 9, 1898, an ordinary or an extraordinary rain storm ? ”
One objection urged is that this interrogatory was not presented to plaintiff at the close of the evidence, but was presented after the opening argument to the jury had been made by counsel for plaintiff, and defendant’s counsel was addressing the jury. We assume that the practice of the Circuit Cqurt of St. Clair County permitted counsel for plaintiff to reply to counsel for defendant’s argument. If so, the purpose of the statute requiring special interrogatories to be presented to opposing counsel before argument, was secured, as counsel for plaintiff had an opportunity to discuss the evidence upon this special interrogatory. It may be added also, that the record shows ,no objection made to submitting the interrogatory on account of the time when it was presented to counsel.
It is also urged that the special interrogatory should not have been submitted because it does not submit “ an ultimate question of fact.”
The declaration alleges “ that said bridge was improperly constructed and altogether insufficient of capacity to permit the natural flow of water that, in ordinary freshets, pass in and out through the channel when the bridge is so constructed, to flow; that in freshets, said bridge obstructs the natural flow of water,” etc.
Plaintiff avers that he gave notice to defendant of the improper construction of the bridge and requested defendant to change it so as “ to permit the free flow of water as aforesaid.”
Plaintiff further avers that on the 29th day of May, 1898, “ an ordinary rain storm set in,” and avers an overflow and damage from this storm.
Plaintiff in error asked and the court gave the following instructions: .
“ If from the evidence in this case the jury believe that the Illinois Central Eailroad Company, defendant in this suit, had been duly notified at the time set forth in the declaration, that the embankment and trestlework in question in this suit were insufficient to permit the natural flow of water in ordinary floods and freshets to pass, as set forth in the declaration; that from the time of the notice, and from thence to the commencement of this suit, defendant, the Illinois Central Eailroad Company, permitted the embankment and trestlework to remain insufficient, as aforesaid, arid did not provide sufficient opening in said embankment and trestlework to permit the passage of the water which would naturally flow in said water-course during ordinary periodical floods and freshets, and that on, to wit, May 29, 1898, there was a flood and freshet in the neighborhood and on the lands adjoining plaintiff’s fair grounds; that by reason of said obstruction an increased quantity of water was forced upon plaintiff’s land (fair. grounds,) from which the plaintiff suffered injury, as alleged in the declaration; then plaintiff is entitled to recover, etc.
If from the evidence in this case the jury believe that the plaintiff, by a preponderance of the evidence, has proven all the allegations contained in the declaration, then the plaintiff is entitled to recover, and the jury may assess plaintiff’s damages at such amount as from the evidence the jury believe plaintiff ought to recover.”
The third instruction refers to the allegations of the declaration specifically and concludes:
“ And if the jury further believe from the evidence that in the montho f May, 1898, the fair grounds were overflowed, and the overflow was caused by the obstruction of the embankment and trestlework being insufficient to permit water in ordinary floods and freshets to pass in and through the channel of said creek and through said trestle-work, then your verdict ought to be in favor of plaintiff, and you may assess the damage at such amount as from the evidence you believe the plaintiff ought to recover.”
It is clear from these citations that the case was tried by plaintiff in error upon the proposition that the rain storm of May, 1898, was not an extraordinary rain storm, or such as defendant in error could reasonably anticipate.
It is in evidence that it was an “ extraordinary heavy rain storm;” “ quite a flood;” “ an unusually heavy storm.”
The instructions for defendant in error are based upon this proposition. That being so, the special interrogatory calls for an answer upon a controlling issue, and it was not error to submit it. In this view we think there was no error in giving instructions numbered 2 and 4 asked by defendant. Instruction 6, given for defendant, is open to the criticism that it does not state what the material allegations of the declaration are, while it tells the jury that they must believe from the evidence that the plaintiff has proved by a preponderance of the evidence every material allegation in the declaration.
But plaintiff in error, in his . instructions, recited the material allegations necessary to be proved, and so taking the instructions as a series, the jury were told what were material allegations.
It is also urged that because the proof showed a greater rain storm than the declaration alleged, that this does not, on the ground of variance, preclude a recovery. It is true that a variance not objected to in the trial court, can not be taken advantage of in an appellate court.
But this is true only where the variance is of such a character that it does not defeat the action entirely. ■
If defendant in error was legally bound to use reasonable care in the construction of its trestle bridge to prevent an overflow in ordinary freshets, or such as might reasonably be anticipated, but was not bound to anticipate and guard against extraordinary floods, then proof of an extraordinary flood was proof that negatived plaintiff’s right to recover.
It was more than a mere variance; it was a substantive defense; and the law as to variance as stated by plaintiff in error does not apply.
Finding no reversible error in the record, the judgment is affirmed.