Chicago, Burlington & Quincy Railroad v. Morkenstein

McAllister, J. In describing the tort complained of and the means by which it was effected, the plaintiff has alleged in each of the several counts of his declaration, that while he was upon the public highway of the City of Chicago and in the exercise of the legal, common right to be and travel thereon, he was necessarily and unavoidably run against, etc., by defendant’s locomotive and train. The rule is that where the pleader, though needlessly, describes the tort and the means by which it is effected, with minuteness and particularity, and the proof substantially varies from the statement, there will be a fatal variance and the plaintiff will fail in his action. Moss v Johnson, 22 Ill. 633; City of Bloomington v. Goodrich, 88 Ill. 558; L. S. & M. S. R’y v. Beam, 11 Ill. App. 215. The plaintiff’s evidence not only failed to support the allegations respecting such public highway but the affirmative evidence on the part of defendant clearly established the fact that there was no public highway at the place where the plaintiff received his injury; but that he was, at the time, in the defendant’s yard, its private property, upon no purpose of business with the defendant, and therefore a trespasser. From this view it is apparent that the fourth instruction, given on behalf of the plaintiff, was erroneous, because it submitted to and authorized the jury to find for the plaintiff upon a cause of action substantially variant from that described in either count of his declaration. Not only that, but it submitted to the jury the question of a wilful tort on the part of defendant, its agents and servants, when there was no evidence sufficient to go to the jury upon that question. For that error the judgment must be reversed and the cause remanded. Judgment revei'sed.-