Chicago & E.I.R. Co. v. O'Connor
| Decision Date | 13 November 1886 |
| Citation | 119 Ill. 586,9 N.E. 263 |
| Court | Illinois Supreme Court |
| Parties | CHICAGO & E. I. R. CO. v. O'CONNOR, Adm'r, etc. |
OPINION TEXT STARTS HERE
Appeal from appellate court, First district.
Action brought by Jeremiah O'Connor, a track-repairer, in the employ of Western Indiana Railroad Company, to recover for personal injuries received by being struck by a train of defendant company, which was a lessee of the tracks of the Western Indiana Company, while plaintiff was at work on the track. The plaintiff recovered a verdict, and, while the case was pending on appeal, died. The judgment was reversed upon said appeal, and a new trial ordered, and, upon remand, the administrator of deceased was substituted as plaintiff, on motion of plaintiff's attorneys. Defendant then filed a plea in abatement, alleging the death of plaintiff from other injuries than those sued for. Upon plaintiff's motion this plea was struck from the files. Afterwards plaintiff filed a demurrer to the plea, which was sustained. Defendant then moved to strike out certain parts of the declaration, which motion was denied in part, and sustained only by striking out the words ‘permanently crippled and disabled’ in each paragraph. Defendant then moved for leave to file a demurrer to each count of the declaration, which was denied. Defendant then moved for leave to file a plea of the general issue, and of statute of limitations, which was denied. Defendant executed to these several rulings, and, upon the trial, to certain instructions given, and certain refusals to give instructions asked. Plaintiff recovered a verdict and judgment, and defendant appealed.
It was error to strike out and sustain the demurrer to the plea in abatement. In Holton v. Daly, 106 Ill. 131, it is intimated that, in case the party dies from other causes than those mentioned in the declaration, nothing survives. The court should have struck out all the allegations of the declaration as to pain and suffering, etc., on our motion. If anything survives to the administrator, it is for actual pecuniary loss up to the time of death. The right of action to recover for permanent injuries, pain, and suffering, etc., abates by the death of the injured party.
After the changes that occurred in the pleadings, viz., the substitution of the administrator, striking from the files, and sustaining a demurrer to the plea in abatement, and striking out portions of the declaration, we were entitled to demur to the declaration, and also to file a plea of the general issue, although such a plea had been filed to the original declaration before the first trial, and a plea of the statute of limitations, if we so desired. North Chicago R. M. Co. v. Monka, 107 Ill. 340.
The issues in the last trial were not the same as in the first one, and therefore the testimony given by Jeremiah O'Connor on the first trial was not competent. Holton v. Daly, 106 Ill. 131;Wade v. King, 19 Ill. 300;McConnel v. Smith, 23 Ill. 611;S. C. 27 Ill. 232; 3 Greenl. Ev. § 341.
Plaintiff was guilty of contributory negligence, and not entitled to recover. In this state we understand the rule of law to be settled that where a party approaches a railroad crossing, knowing it to be such, and goes upon the track where his view is unobstructed, and is injured by a passing train, he cannot maintain an action on the ground of negligence in the failure to ring a bell or sound the whistle. Chicago, B. & Q. R. R. v. Lee, 68 Ill. 576.
The second instruction given for plaintiff is erroneous, as it embraces the element of pain and suffering as a ground of recovery. The right to recover for pain and suffering does not survive.
The refusal to instruct the jury that, if deceased was injured solely by reason of his making a mistake as to which track the train was coming on, he could not recover, was error.
The plea in abatement was properly struck from the file, and a demurrer thereto properly sustained. The case of Holton v. Daly, cited by counsel for defendant, not only fails to support the position taken by them, that the suit abated by the death of O'Connor, but, on the contrary, it is positively and unequivocally in our favor. It in effect declares that a suit would not abate if the plaintiff died from other causes than those for which he sued; and further declares that the administrator of the deceased, in a cause where the deceased died from different causes, is placed in exactly the same position of the deceased, and can recover exactly the same compensation as the deceased himself could have recovered upon final judgment.
The testimony of Jeremiah O'Connor, given at the former trial, was properly admitted. The issues were substantially the same as at the first trial. Where the issues are substantially the same, such evidence is admissible. Iglehart v. Jernegan, 16 Ill. 513;Mineral P. R. Co.. v. Keep, 22 Ill. 9; 1 Greenl. Ev. (13th Ed.) 199, 200; 1 Whart. Ev. § 177.
The allegations struck out were merely surplusage. Burnap v. Wight, 14 Ill. 301; 1 Chit. Pl. 262; Steph. Pl. 524; Tucker v. Randall, 2 Mass. 283;Grannis v. Clark, 8 Cow. 36;Wilmarth v. Mountford, 8 Serg. & R. 124.
After a general verdict for plaintiff, it is presumed that no damages have been given on faulty allegations of a declaration. Steele v. Western I. L. Nav. Co., 2 Johns. 283;Richards v. Farnham, 13 Pick. 451.
The death of O'Connor having occurred from other causes than the injury sued for, the administrator may recover exactly the same compensation, and upon the same grounds, that he could have recovered if he had lived, which would include damages for pain and suffering. Holton v. Daly, supra.
The instruction asked, referring to O'Connor's actions as a mistake, was properly refused. The court had no right to characterize his conduct in that manner. Moreover, a mistake does not necessarily include negligence. The instruction was given, as far as proper, in other instructions.
It was discretionary with the court to give or refuse leave to file a special plea, and there was no abuse of discretion in refusing leave to plead the statute of limitations, as defendant's object was merely to base thereon a frivolous claim that, by the change in the declaration, a change in the cause of action was made, and the action must be considered as begun at the time of such change.
Defendant had no right to demur or plead the general issue to the declaration, there being a plea of the general issue already on file.Wm. Armstrong
, for appellant.
Hynes, English & Dunne, for appellee.
We have carefully considered the several grounds urged for a reversal of the judgment below, and are of the opinion that they are all untenable.
1. The action being for personal injuries caused by the negligence of the defendant, it is within the statute, and survives, (section 123, c. 3, Rev. St. 1874;) and there is nothing in Holton v. Daly, 106 Ill. 131, which holds to the contrary. Indeed, it is expressly therein recognized that such actions do survive upon the death of the plaintiff; and it was held, when the death is the result of the injuries for which the suit is brought, the action must be prosecuted after the death for the benefit of the widow and the next of kin; and that, in such case, there can be no recovery for the bodily pain and suffering, but that, where the death results from a cause other than the injuries for which the suit is brought, there may be a recovery, notwithstanding the death, for precisely the same injuries that the party himself could have recovered for, had he lived until after the final trial. The demurrer to the plea was therefore properly sustained. The motion afterwards made to strike the plea from the files was simply supererogatory. Sustaining it did no possible harm to the defendant.
2. We are not aware of any authority which sanctions the practice of striking out portions of a declaration on motion. If a declaration is defective, a demurrer should be interposed; and, in some instances, the same question may be raised on objection to evidence, or on instructions to the jury. In no view do we think the defendant was prejudiced by the ruling of the circuit court in this respect. The question is not what we may think ought to survive, but what does the statute declare shall survive. Its language is free of ambiguity, very plain, and, it would seem, incapable of being misapprehended. It is: ‘In addition to the actions which survive by the common law, the following shall also survive: * * * Actions to recover damages for an injury to the person. * * *’ This can surely mean nothing else than that the action shall proceed in the name of the administrator, just as if the party had not died. It does not, as does the act of February 1, 1853, give a new right of action to the administrator. It simply continues an existing action or right of action, and prevents its abating by the death of the plaintiff or party having the right of action.
3. The plea of not guilty was already on file. The action of the court in ordering, on the defendant's motion, that a portion of the...
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