Gerke v. Fancher

• Decision Date: 16 October 1895
• Citation: 158 Ill. 375,41 N.E. 982
• Parties: GERKE v. FANCHER.
• Court: Illinois Supreme Court

158 Ill. 375

41 N.E. 982

GERKE

v.FANCHER.¹

Supreme Court of Illinois.

Oct. 16, 1895.

Appeal from appellate court, Fourth district.

Action on the case by John Fancher against Henry Gerke. Plaintiff obtained judgment, which was affirmed by the appellate court. 57 Ill. App. 651. Defendant appeals. Affirmed.

Mills & Flitcraft and Messick & Rhoads, for appellant.

Jesse M. Freels, for appellee.

BAILEY, J.

This was an action on the case brought by John Fancher against Henry Gerke, to recover damages for a personal injury. The cause was tried by a jury on a plea of not guilty, and a verdict rendered finding the defendant guilty, and assessing the plaintiff's damages at $1,500. The court, after denying the defendant's motion for a new trial, gave judgment in favor of the plaintiff for $1,500 and costs. That judgment having been affirmed by the appellate court on appeal, the cause is brought to this court on appeal from the judgment of affirmance.

The declaration, which consists of but one count, alleges in substance that on February 15, 1892 (the day preceding the night on which the plaintiff was injured), the St. Louis, Alton & Terre Haute Railroad Company was operating a railroad through St. Clair county, and through a part of the city of East St. Louis, and also certain railroad yards for coal and freight; that the plaintiff was then in the employ of that company as a switchman in its yards in East St. Louis; that the defendant was then engaged in the coal business, and had servants and teams in his employ in hauling coal from coal cars in the yards of the railroad company, and transporting across the Mississippi river to the city of St. Louis; that it was the duty of the defendant, by his servants, to use ordinary care and prudence in the prosecution of his business of hauling and transporting coal from the coal cars and coal yards of the railroad company to prevent injury to the employés and servants of the railroad company, and especially to the plaintiff; but the plaintiff alleges that the defendant, by his servants, wholly disregarded his duty in this behalf, and negligently and recklessly placed a long, heavy, oak plank or piece of timber, about 16 feet long, 12 inches wide, and 3 inches thick, near and by the side of one of the railroad tracks of the railroad company, in its coal yards, the timber or plank being one which the defendant's servants had been using to pry up one of the wheels of one of the heavy coal wagons of the defendant, which had sunk in the mud or soft ground by one of the railroad tracks of the company; and that the defendant's servants negligently and recklessly left the piece of timber with one end buried in the mud where they had been so using it, and the other end elevated considerably above the surface of the ground, and pointed towards the railroad track, so that the end of it came so dangerously near the side of the track and above the surface thereof that it caught and injured the plaintiff as hereinafter stated. It is further alleged that in the discharge of his duty as switchman, at about 3 o'clock at night or in the morning of February 16, 1892, the defendant was standing on the side of his car or engine, where it was his duty to be; and while he was passing along the track on his car or engine by the place where the timber was so negligently left by the defendant's servants, and without any notice or warning of danger, and without any knowledge or notice of the presence or position of the timber, his right leg just below the knee was brought into contact with the elevated end of the timber so negligently placed and left there by the servants of the defendant, and his leg was, by the timber, pressed against the side of the car or engine, and mashed, crushed, and torn open, and its strength and usefulness almost wholly destroyed, and the defendant thereby greatly and permanently injured.

The first ground upon which the defendant seeks to have the judgment reversed is that the declaration is insufficient and defective, in that it fails to allege that the plaintiff, at the time of his injury, was in the exercise of reasonable care. No demurrer to the declaration was filed in the trial court, nor was the sufficiency of the declaration challenged by motion in arrest of judgment, and consequently the alleged defect in that pleading is now sought to be taken advantage of for the first time by assignment of error in this court. It is the well-settled rule in this state that, before a plaintiff can recover damages for an injury caused by the defendant's negligence, he must aver and prove the absence of contributory negligence on his own part; in other words, he must allege and prove that he was himselfin the exercise of due care. Railroad Co. v. Hazzard, 26 Ill. 375. The declaration contains no allegation in express terms that the plaintiff was in the exercise of due care, although the fact is, as we think, alleged argumentatively, and the question is whether the defect is one that was cured by verdict. Before verdict, the intendments are against the pleader, and, upon demurrer to a declaration, nothing will suffice by way of inference or implication in his favor; but, on motion in arrest of judgment,-and the same thing is true where the defect is sought to be availed of on error,-the court will intend that every material fact alleged in the declaration, or fairly and reasonably inferable from what is alleged, was proved at the trial; and if, from the issue, the fact omitted and fairly inferable from the facts stated in the declaration may fairly be presumed to have been proved, the judgment will not be arrested. Pennsylvania Co. v. Ellett, 132 Ill. 654, 24 N. E. 559. The rule on this subject as laid down by Mr. Gould, in his treatise on Pleading, is as follows: ‘When the statement of the plaintiff's cause of action, and that only, is defective and inaccurate, the defect is cured by a general verdict in his favor, because, to entitle him to recover, all circumstances necessary, in form or substance, to complete a title so imperfectly stated, must be proved at the trial, and it is therefore a fair presumption that they are proved. But, where no cause of action is stated, the omission is not cured by verdict; for as no right of recovery was necessary to be proved, or could have been legally proved, under such a declaration, there can be no ground for presuming that it was proved at the trial.’ Gould, Pl. 463. The rule as laid down by Mr. Chitty is that a verdict will aid a defective statement of title or cause of action; or, stating the rule more fully, the same author says: ‘Where there is any defect, imperfection, or omission in any pleading, whether in substance or in form, which would have been a fatal objection...