A. M. Rothschild & Co. v. Levy

Mr. Justice Adams delivered the opinion of the court. In each count of the declaration it is averred that plaintiff’s intestate attempted to get on the elevator while it was stopped. This is a material allegation, and, in view of the pleadings, proo'f thereof is necessary to a recovery, and so the court, in effect, instructed the jury. There is no conflict between the testimony of the only two witnesses of the-accident, as to whether the deceased attempted to get on the elevator while it was in motion, ascending from the fifth to the sixth floor of the building. Miss Alder, whose deposition was taken by the plaintiff, testified, as shown in the previous statement: “ He was in the act of getting on when I first observed the elevator and the boy. At that time the elevator was about two feet above the floor, and the elevator door was partly closed, and the elevator man had his hand on the door, in the act of closing it, and the boy was attempting to get in. The elevator was moving and the boy was trying to get on the elevator while it was moving.” This was on cross-examination, and on re-direct plaintiff’s attorney, evidently aware of the importance of the question whether the deceased attempted to get on the elevator while it was moving, re-examined her on that question, with the result that she emphasized her former evidence. Other parts of her evidence show that it was impossible for her to have seen the deceased attempt to get on when the elevator was stopped at the fifth floor. In her examination in chief, she testified : “ I didn’t notice whether the elevator had stopped at the fifth floor or not.” Again: Q. “ Do you know whether or not the elevator, which the boy afterwards attempted to enter, came up at any time while you stood there, prior to the time at which the accident occurred ? ” “ Ho, I didn’t know-»whether it came up or not.” Earl V. Hewitt, the elevator man, testified positively that when the elevator had started from the fifth' floor, and was about one foot above the floor, and when the door of the elevator was within ten inches to a foot of being closed, the deceased darted in from somewhere, and got his right foot on the elevator; and he tried to catch him, etc. Also, that before the deceased so darted in, he had not seen him. Counsel for plaintiff say that there is a conflict between the testimony of these witnesses, and urge that when the evidence is conflicting or irreconcilable, the question is one for the jury, and should not be disturbed by a reviewing court. A conflict is when the testimony of one witness is contrary to the testimony of another. But there is no conflict between the testimony of Miss Alder that she first saw the deceased when he was attempting to get on the elevator, when it was moving above the fifth floor, when the deceased was falling, as she says, and Hewitt’s testimony that the first he saw of the deceased he was trying to get on the elevator while it was about a foot above the fifth floor and moving. In the early case of Moss v. Johnson, 22 Ill. 633, the court say : “ It is a rule in pleading, subject to no exception, that a party must recover, if at all, on, and according to, the case he has made for himself in his declaration. He is not permitted to make one case for himself, by his allegations, and recover on a different case made by the proof.” Ib. 640. This rule has been uniformly followed in this State. Lake St. El. Rd. Co. v. Shaw, 203 Ill. 39; W. C. St. R R. Co. v. Kautz, 89 Ill. App. 309; Wabash W. Ry. Co. v. Friedman, 146 Ill. 583; Ebsery v. Chicago City Ry. Co., 164 Ill. 518. In the' case ' last cited it was averred in the declaration that the car was stopped and not moving when the plaintiff boarded it, and attempted to find a seat, and that it was suddenly started and moved, and that he fell from the car while it was stay tionary and not moving. The jury found the guilty, but found, in answer to a special interrogatory, that; the car, at the time the plaintiff fell, was in motion. The trial court, on motion of the defendant, gave judgment for the defendant, on the jury’s answer to the special interrogatory, and this court approved the judgment. Counsel, however, lay stress on the testimony of Miss Alder that she saw the deceased standing at the door of the elevator, waiting, when the elevator reached the fifth floor. This evidence is clearly inconsistent with her former testimony, that she did not notice when the elevator reached the fifth floor, and that she did not is apparent from her testimony that she did not see the two ladies, who came up to the- fifth floor on the elevator, get off at that floor. If she did not see the elevator reach the fifth floor, how could she know the deceased was standing at the door when the elevator reached the floor? Hewitt testified that they did, and the contrary is not claimed by counsel. But, on the hypothesis that the deceased was standing at the door, as Miss Alder testified, it cannot legitimately be inferred that he undertook to enter the elevator while it was stationary, in view of Hewitt’s testimony, with which Miss Alder’s is not inconsistent, that the deceased attempted to get in the elevator when it was about a foot above the fifth floor, in its ascent to the sixth floor. Counsel contend that Hewitt’s evidence that he did not see the deceased is incredible. He was in the cage of the elevator; the boy was small, and may have been standing west of the east elevator and close to the west one. Miss Alder says she stood five or six feet from the elevator in question, and, if so, must have had an unobstructed view of it, yet she did not see it stop at the fifth floor, nor did she see the two passengers alight from it at that floor. Counsel say that Hewitt’s testimony that the elevator was moving slowly is not true, yet Miss Alder testified, in her examination by plaintiff’s attorney, that the elevator was moving slowly. Without intimating that Miss Alder intentionally gave any false testimony, we must say that Hewitt’s testimony is much more consistent than hers. She stated frankly that her recollection was not as gdod as at the time of the accident, adding, “ I have forgotten quite a bit,” which words are not abstracted; also that she was not absolutely certain as to all facts she testified to, and that by reason of the circumstances having occurred so long ago, she might be mistaken as to some of the facts. But counsel contend that the evidence warrants a recovery under the third count of the declaration, which avers that “ while the said Morris Levy was attempting to get upon the said elevator,” etc., the defendant, by its servants, did not close the elevator door before starting the elevator, and suddenly, etc., started the same. This count clearlv avers, as do the other counts, that the elevator was stopped when the deceased attempted to get on it, and that the accident occurred by reason of the elevator being suddenly started, while at rest. The trial court, as evidenced by the instructions, so construed the declaration. In Block v. Swift & Co., 161 Ill. 107, it appeared that the plaintiff attempted to board an elevator while it was ascending and was injured. The court say : “ There was no duty on the part of the plaintiff to get upon the elevator while ascending, and his injury resulted from his attempt. That his act, in making such attempt, was the cause of his injury, and that the act was negligence, does not admit of controversy.” The evidence for the plaintiff shows that the deceased had no business on the sixth floor, and the fact that he attempted to board a car ascending to that floor, after the elevator man hallooed,<[ Going_up,” is inexplicable, except, perhaps, on the hypothesis of sudden and thoughtless impulse. The deceased was eight years and eleven months old at the time of his death, which occurred a few minutes after the accident. He was a bright, intelligent boy, in the' fourth grade at school. His mother testifies that she could send him- anywhere, and that he was as capable of taking care of himself as a man. He was, therefore, bound to the exercise of such care for his personal safety as might reasonably be expected of one of his age and intelligence. R. R. Co. v. Delaney, 82 Ill. 198, 201. We fail to find in the record any evidence that theMeceased exercised such care. Counsel for plaintiff urge that there is no presumption that the deceased unnecessarily exposed himself to danger, which is true, and that due care on his part may be presumed from the instinct prompting to the preservation of life, to which we do not assent. In C. & E. I. R. R. Co. v. Heerey, 203 Ill. 492, 499, the court say: “ It is true that where the fact is not susceptible of direct proof it may be inferred from the circumstances, and the plaintiff may be aided by the presumption that a person does not voluntarily incur danger or the risk of death. But that does not affect the question where the burden of proof rests. In a case where a person is killed and there are no eye-witnesses to the accident, there is no dispute that the burden of proof rests on the plaintiff to show due care on the part of the deceased, but if there are, no eye-witnesses and no direct proof he is entitled to the benefit of the presumption.” In this case it was incumbent on the plaintiff to prove that the deceased attempted to board the elevator when it was at rest. This the plaintiff not only failed to do, but the direct evidence is that he attempted to board it when it was ascending from the fifth to the sixth floor of the defendant’s building. The case of C. T. T. R. R. Co. v. Schmelling, 197 Ill. 619, relied on by defendant’s counsel, in so far as it holds that a party, by asking an instruction •which in effect submits a question to the jury, cannot urge that there was no evidence on the question sufficient to go to the jury, has been overruled in Ill. Central R. R. Co. v. Swift, a recent unreported case. There being no proof of an essential element of the plaintiff’s case, the court should have directed a verdict for the defendant. The judgment will be reversed. Reversed.