Ayers v. City of Chicago

Citations

• 111 Ill. 406

Syllabus

<p>1. Pleading — of the declaration — -in action against a city to recover for personal injuries resulting from negligence. In an action against a city to recover for an injury resulting from leaving a dangerous pit unguarded, it is not sufficient in the declaration to allege, generally, that it was the duty of the defendant to cover or otherwise protect a dangerous pit or place, hut the pleader must state facts from which the law will raise the duty.</p> <p>2. Pleading and evidence — allegations and proofs must correspond. A plaintiff can not recover except by proof of the case stated in his declaration. The probata must support the allegata.</p> <p>3. Same — in suit against a city for personal injwries — allegation and proof as to duty of the city in respect to safety of streets. An allegation in a declaration in a suit against a city to recover damages for a personal injury, that the defendant was in the possession and occupancy of premises adjoining a public highway on which was a dangerous pit, and that by reason of such occupancy it was the duty of the defendant to protect the public against danger of injury from falling into such pit, by covering the pit, or otherwise guarding against accident, and alleging a failure to perform such duty, is not sustained by. proof that the defendant was possessed of a public street frequented by the public, and by reason of the possession of the street it became the duty of the defendant to make and keep the public highway in a safe condition, and that in violation of this duty the city had negligently permitted a dangerous pit adjoining such highway to be and remain without any harrier to prevent persons passing from falling therein, nor is such allegation sustained by proof tending to show negligence of the defendant to keep such highway so in its possession safe, by permitting to be and remain in the same a dangerous pit wholly unguarded by any harrier.</p> <p>4. Under a declaration charging a city with the duty of coveri