Gascoigne v. Metropolitan West Side Elevated Railway Co.

Mr. Justice Carter delivered the opinion of the court: Appellee came to this station on the morning of the accident on the cars of appellant, leaving them at said Fifth ayenue terminal station. She attempted to pass through one of said two turnstiles, and her left foot was caught in it and she was thrown against the arms of the turnstiles. No one noticed her until after she was injured, and' as to the way her foot was caught her testimony is the only evidence. She testified that she pushed against the arm in front of her and set the turnstile in motion; that it “got away” from her and the- arms behind her struck against her, and that her left foot was caught by the lower rung of the turnstile and bent back; that she fell against the arms of the turnstile in front of her and that her left foot and ankle were injured, and she was hurt in the groin and a hernia was thereby produced. The testimony also tends to show that the ratchet at the bottom of the turnstile, into the twelve grooves of which the dog dropped to prevent it turning backward, was in some manner out of order, both before and after this accident; that a spring acting on the dog did not work correctly. Whether this was because the spring, dog or ratchet arrangement was out of repair or because they were improperly constructed the record does not disclose. This might result in causing the turnstile to move more easily. As has been stated, the testimony of appellee tended to show that her left foot was caught between the lowest revolving arms and the floor, and does not tend to prove the allegation of the declaration that in passing through said turnstile she was caught by her left foot between one of the horizontal projecting rounds of said turnstile and one of the stationary arms. The variance, however, was not pointed out in any manner in the trial court. A general instruction to direct a verdict for the defendant was asked both at the close of appellee’s testimony and at the close of all the testimony and refused in each instance by the trial court. Had a specific objection as to this variance been made on the trial it could have been obviated by amending the declaration. The objection comes too late in this court. (Indianapolis and St. Louis Railroad Co. v. Estes, 96 Ill. 470; Consolidated Coal Co. v. Wombacher, 134 id. 57.) On motion for new trial it was alleged that there was a variance because the declaration alleged that the turnstile was wrongfully and negligently constructed, while it is contended the proof introduced did not show how it was wrongfully constructed. Not only must the variance be specifically pointed out, charging variance in general terms will not be sufficient, (Probst Construction Co. v. Foley, 166 Ill. 31; City of Joliet v. Johnson, 177 id. 178; Zellers v. White, 208 id. 518;) but a motion grounded upon an alleged variance does not preserve the consideration of such variance as a question of law for review by this court in the absence of an objection or a motion to exclude the objectionable evidence at the trial. Alford v. Dannenberg, 177 Ill. S31- The trial court instructed the jury, at the request of appellant, that its duty was to use reasonable care in the construction and maintenance of said turnstile, and that if the jury believed appellant had used reasonable care in respect thereto then the verdict should be not guilty. No exception was taken to this instruction, and the law of this case is, therefore, that appellant owed the duty to appellee to use reasonable care in constructing and maintaining a safe turnstile. Illinois Central Railroad Co. v. Keegan, 210 Ill. 150. The chief contention of the appellant, however, is, that there is no evidence in the record to support the allegation in the declaration that the turnstile was improperly constructed. Appellant introduced certain testimony tending to show that it had constructed its turnstile in the usual and ordinary method of constructing turnstiles of that kind and for that use. The evidence shows that the turnstile was so constructed that the lowest arm was at least eight and one-half inches above the floor and that the appellee was injured by reason of her foot being caught between the lowest revolving arm of said turnstile and the floor. We think, therefore, there is evidence tending to sustain the material allegations of the declaration, however insufficient it might be regarded if we were required to find where is the preponderance. Whether appellant should have foreseen that such an accident might happen and could have been reasonably anticipated we think on this record was a question fairly to be submitted to the jury. Their verdict being against the appellant, and having been approved by the trial and Appellate Courts, we cannot interfere. The argument of appellant as to the application of the doctrine of res ipsa loquitur need not be discussed. Apparently appellee did not rely on this rule of law in the trial of the case. No instructions were given touching it, and it is not claimed that the trial court made any improper rulings as to this question. There being evidence tending to show negligence, which was properly submitted to the jury, the doctrine of res ipsa loquitur requires no consideration. It is also insisted that the court erred in permitting certain doctors to testify, on re-direct examination, as to strangulated hernia when this question was not raised either in the direct or cross-examination. This evidence, after it was admitted, was stricken out on motion of appellee. We do not see how the admission of this testimony and its subsequent exclusion could have improperly influenced the jury as to their verdict. We are disposed to think that objections to certain parts of the closing address of the attorney for appellee were not properly preserved in the record by exceptions, but even if they were, we do not consider them of such nature as to justify a reversal of the cause. The judgment of the Appellate Court will be affirmed. Judgment affirmed.