Lynn v. Illinois Central Railroad

Arnold, J., delivered the opinion of the court. The demurrer is to the whole declaration, and if either count is good, the demurrer should have been overruled. The demurrer is general, and, under § 1560 of the code, no defect or imperfection in the declaration is to be considered, unless something so essential to the action is omitted that judgment according to law could not be rendered for the plaintiff. [162] On the facts alleged in the declaration, and admitted by the demurrer to be true, we fail to see why such judgment could not be rendered. It may be true, as insisted by appellee, that if the deceased was a minor, eighteen years of age, he took upon himself the natural and ordinary risks of the service in which he w'as engaged, and that the liability of the employer for injuries to such minor would be the same, if any, as to an adult under like circumstances. Beach on Contributory Neg. 359, 360. But the age of eighteen is ascribed to the minor in only one count of the declaration; in the other he is described as being a minor of tender years. There is no express reference in one count to the other on this point, and it does not appear in either count that the injuries complained of resulted from perils incident to the employment, but rather from the negligence and carelessness of appellee, and its employees not shown to be fellow-servants of the minor in a common employment. The demurrer should have been overruled. The judgment is reversed.