Toledo v. Foss
| Citation | 1878 WL 9930,88 Ill. 551 |
| Parties | TOLEDO, WABASH AND WESTERN RAILWAY COMPANYv.CHARLES H. FOSS. |
| Decision Date | 31 January 1878 |
| Court | Supreme Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Morgan county; the Hon. CYRUS EPLER, Judge, presiding.
Messrs. DUMMER, BROWN & RUSSELL, for the appellant.
Messrs. GILLESPIE & HAPPY, for the appellee.
This was an action, brought by appellee, to recover for a personal injury received while a passenger on appellant's road, between Jacksonville and Springfield, on the 20th day of March, 1874. The declaration contains two counts. In the first one it is averred that defendant negligently and carelessly ran the train of cars, on which plaintiff was a passenger, violently against and upon a horse, by means whereof the car of the train occupied by plaintiff was thrown from the track, by means whereof plaintiff was injured, etc. The second count is like the first one, except it is averred the defendant willfully ran the train upon the horse.
Under this declaration, the plaintiff could not recover on account of any negligence of the railroad company other than that alleged. The allegation and proof must correspond. The plaintiff could not aver negligence in one particular, and, on the trial, prove that defendant was negligent in another regard. One object of a declaration is, to state the facts relied upon for a recovery so plainly that the defendant may be prepared to meet them. This object in pleading would be entirely defeated if a plaintiff had the right to aver in his declaration one ground of action, and, on the trial, prove another and different one.
On the trial of the cause, the court permitted the plaintiff to prove the railroad track was not properly fenced; that a gate was down, so that animals could go upon the road, and, also, permitted the plaintiff to show the train was not provided with steam brakes. This testimony was improper. If the plaintiff based his right of action upon the negligence of the defendant in failing to use proper machinery in the equipment of its trains, or in neglecting to make or keep in repair fences sufficient to keep animals off its track, the established rules of pleading required him to aver these facts in his declaration, so that the defendant might, on the trial, be prepared to meet them by proof. Illinois Central Railroad Co. v. McKee, 43 Ill. 120.
This error in the admission of improper evidence was followed by an...
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