Lake Street Elevated Railroad v. Collins

Mr. Presiding Justice Ball delivered the opinion of the court. Appellee recovered a judgment in the sum of §200 against appellant for an assault and battery committed upon him by one of its servants while he, appellee, was a passenger upon one of the trains of appellant. The case comes to this court by appeal. It is alleged (among other things) in the declaration, “ that on the 28th day of July, 1899, the plaintiff having purchased from the defendant a ticket to be carried on defendant’s road from Wabash avenue in the city of Chicago, county aforesaid, to Austin avenue, town of Cicero, county aforesaid, which ticket was one of the regular and legally issued tickets for conveyance of passengers issued by the said defendant, and plaintiff did, on the daté last aforesaid, while in possession of said ticket, enter a car of said defendant at Wabash avenue, in the city of Chicago, county aforesaid, and the defendant did then and there receive the plaintiff as such passenger, and it became the duty of the defendant to then safely and peaceably carry the said defendant to Austin avenue in the town of Cicero, county aforesaid, and that while he, the plaintiff, was then and there sitting in one of the seats provided in said car and without any just cause or provocation whatsoever therefor, while said car was going west between certain streets in the city of Chicago, to wit, between the streets of Homan and Hamlin, the said defendant, by its servant and employe, sometimes called guard, did then and there, without any just cause, or provocation whatever, make an assault upon the plaintiff and strike said plaintiff.” The evidence of appellee is that he got on the train either at Madison street or at Quincy street, and tha t his destination was Prairie avenue, Austin. He further testified: “I paid my fare, five cents, when I passed through the station.” At the close of all the evidence appellant moved the court to instruct the jury to return a verdict for the defendant (appellant here) upon the following grounds: first, there is not sufficient evidence upon which to base a verdiet against the defendant; second, there is not sufficient evidence to sustain a judgment against the defendant; “ third, there is a fatal variance between the pleadings and the proof in this: The declaration alleges a contract to carry the plaintiff on defendant’s road from Wabash avenue in the city of Chicago to Austin avenue in the town of Cicero, whereas the proof shows a contract to carry plaintiff from Quincy or Madison street to Prairie avenue. The declaration also alleges that said contract was in writing, that is, that the plaintiff purchased a ticket, whereas the proof shows a verbal contract, that is, the plaintiff paid his fare.” This motion was accompanied by a written instruction to the jury to find the defendant not guilty. The court denied such motion and refused to give said instruction; and appellant duly excepted to the ruling. We have carefully examined the instructions given at the request of appellee, to which appellant objects, and find that while they are not all drawn with the utmost accuracy, in none of them do we find reversible error.' The mere fact that the trial judge declared that a remittitur of $306 from the verdict of $500 must be entered or he would grant a new trial, does not establish the fact that the jury gave appellee vindictive damages. The jury may have thought that $500 was but compensatory damages for the injury and insult inflicted upon appellee by the servant of appellant, while in the judgment of the court $200 was ample compensation therefor. In actions of tort, like the one at bar, the amount of damages is so largely in the judgment of the jury that it is in extreme cases only that the court is justified in interfering with its finding. Lowry v. Orr, 1 Gilm. 83; Scott v. Hamilton, 71 Ill. 85; Shevalier v. Seager, 121 Ill. 569; Netcher v. Bernstein, 110 Ill. App. 484. As noted in the statement of facts, there is a variance in the allegations of the declaration and the proof. The existence of this variance was explicitly called to the attention of the trial judge and of opposing counsel, by appellant, at the close of the testimony. It is the right of a defendant to insist that the cause of action against him be clearly stated, and that the plaintiff shall prove the same as alleged. It is elemeritary that one cause of action cannot be alleged and another proved, if the defendant points out the variance in due time. In this case, to warrant a recovery, it was essential that appellee should allege and prove that the relation of carrier "and passenger existed between him and appellant at the time of the alleged assault. Unless that relation were established, appellant was not responsible for the misconduct of its servant, Garrity, toward appellee, however unjustifiable that conduct was. Appellee could not be a passenger upon the road of appellant except by contract, expressed or implied. A declaration that did not set up this contract, in actions similar to the one at bar, would be fatally defective. In stating this part of his cause of action, appellee might have alleged in general terms that at the time and place of the assault he was a passenger upon one of appellant’s trains. Instead of so doing he particularly stated the termini of his journey. The evidence of appellee shows, without dispute, that neither terminus was correctly described. Here is a clear variance which.was pointed out in apt time, so that appellee, if he chose, might have amended his declaration. He did not elect to amend, but stood by the case made by the allegations of the declaration and the proofs. “ When the plaintiff’s right consists in an obligation on the defendant to observe some particular duty, the declaration must state the nature of such duty, * * * and the plaintiff must prove such duty as laid, and a variance will, as in actions on contracts, be fatal.” 1 Chitt. PL, *383. “ But, if the plaintiff, though needlessly, describe the tort and the means adopted in effecting it, with minuteness and particularity, and the proof substantially vary from the statement, there will be a fatal variance which will occasion a non-suit.” lb. *392. The rule as thus laid down must be followed if the right of the defendant to know with certainty the nature of the plaintiff’s demand is preserved inviolate. Unless this rule be enforced the defendant cannot safely prepare for trial. As we read the authorities in this state, the law is that such a variance as here presented forbids a recovery by appellee. L. S. & M.S. Ry. Co. v. Ward, 135 Ill. 511; Wabash Western Ry. Co. v. Friedman, 146 Ill. 583; Chicago City Ry. Co. v. McMeen, 206 Ill. 115, 120; L. S. & M. S. Ry. Co. v. Beam, 11 Ill. App. 219; Wis. Cent’l Bd. Co. v. Wieczorek, 151 Ill. 579; Wabash Ry. Co. v. Billings, 212 Ill. 37. Because of the error indicated t,he judgment of the Superior Court is reversed and the cause is remanded. • Reversed and remanded.