Byrne v. Marshall Field & Co.

Mr. Justice Scott delivered the opinion of the court: It is said by appellant that the demurrer to the plea of the Statute of Limitations should have been overruled as the original counts failed to state a cause of action by reason of the omission of words stating explicitly that the parents and sisters mentioned as surviving the deceased were his next of kin, the amendments to the original counts being made and the additional counts being filed more than two years after the death of the deceased. The authorities upon which appellant relies hold that a declaration in a case of this character must aver that the deceased left a widow or next of kin. If a man dies leaving parents and sisters he leaves next of kin. It therefore appeared from the original counts that the deceased left next of kin. In the case of Chicago City Railway Co. v. Hackendahl, 188 Ill. 300, which was a case of the same character as this, the original declaration averred that the plaintiff, who was the father of the deceased and his administrator, “as the father and next of kin” of the deceased had sustained damages on account of his death, and alleged nothing further as to next of kin. More than two years after the cause of action accrued the plaintiff amended the declaration so that it averred that the deceased left surviving him as his next of kin his parents and certain brothers and sisters, naming them. To the amended declaration a plea of the Statute of Limitations was interposed, and it was urged, upon a demurrer being filed to this plea, that there was no allegation in the original declaration that there was a widow or next of kin, and that it therefore failed to state any cause of action whatever. This court held that the original declaration alleged the existence of next of kin in an imperfect manner, and that it stated a cause of action, though defectively. We think that case warranted the trial court in holding against the appellant on this proposition. Here, as in that case, it appeared from the original declaration that there were next of kin, although the averments were not as full and complete as they should have been. It is then urged that the demurrer to the .plea of' the Statute of Limitations as to the second additional count, should have been overruled in any event, for the reason that this count states a cause of action other than that stated in either of the original counts. A comparison of the second additional count and the third original count shows that both, though in” varying terms, charge the same negligence, viz., that the defendant negligently failed to properly and sufficiently inspect the elevator. Appellant complains of the court’s refusal to give its second instruction, which was to the effect that if the deceased knew, two or three days before the accident, that the elevator was out of order but continued to operate the same, he thereby assumed the risk incident to the defective condition of the elevator. Before it can be said that the deceased assumed the risk which resulted in his death in this case, it must appear not only that he knew of the defective condition of the elevator, but that he knew, or was chargeable with knowledge, of the attendant danger. This instruction omits the element of knowledge of the danger. Complaint is also made of the first and fourth instructions given on behalf of the plaintiff. Each of these instructions stated the circumstances under which a recovery could be had, and the objection is that both ignore the doctrine of assumed risk. While the evidence shows that the deceased knew that the elevator was in bad order and not running properly, there is absolutely no evidence to indicate that he knew, or should have known, that there was any danger of the elevator falling. In fact, the evidence fails to show what caused the elevator to start to fall. It does appear from the testimony of the inspectors who examined the elevator after the accident, that the safety dogs, which were under the platform of the elevator, were so badly rusted that they did not work, and that had they been in working condition when the elevator started to fall they would have stopped it. The proof also shows that a proper inspection within a reasonable time prior to the accident would have enabled appellant to ascertain the defective condition of these-dogs. It was only by inspection, however, that the precise nature of any difficulty with the elevator was discovered. There was no evidence that the deceased knew, or should have known, anything about the danger, or that he was charged with the duty of making, or had, any right to make, an inspection of the elevator and its appliances, or that he possessed the necessary skill and knowledge to make an inspection. There was therefore no proof upon which an instruction stating the doctrine of assumed risk could have been based. The judgment of the Appellate Court will be affirmed. Judgment affirmed.