Chicago, Burlington & Quincy Railroad v. Bell

Citations

• 112 Ill. 360

Syllabus

<p>1. Appeal—reviewing facts—and what are considered questions of fact relative to negligence. In an action to recover for an injury resulting from alleged negligence in the management of a train of cars, the questions presented, whether any notice was given of the dividing of the freight train in a particular manner, or whether any warning was given of a sudden movement of the train, (the immediate cause of the injury,) or whether the party thereby injured or killed was at the time using due care for his safety, or whether he was a fellow servant with others to whom the negligent acts were attributed, are questions of fact not subject to review on the evidence in this court, except so far as they may have a bearing upon the instructions given or refused.</p> <p>2. Allegations and proofs—as regards the grounds of alleged negligence. A plaintiff suing a railway company to recover damages growing out of negligence, will be confined in his evidence to the specific acts of negligence alleged in his declaration as the cause of his action. His allegations and proofs must agree, and he can not charge in his declaration, as a ground of action, a specific act of negligence, and succeed on the trial by proving another wrongful act wholly different from that charged.</p> <p>3. In an action against a railway company to recover damages for the death of the plaintiff’s intestate, where the negligence charged in each count of the declaration is, that while the deceased was on one of the cars of a freight train for the purpose of assisting in unloading stone, he was, by a sudden jerk or movement of the train, of which no notice or warning was given by those having it in charge, thrown down between the cars, and run over and killed, it was held, that no recovery could be had on the ground that the foreman, under whom the deceased was employed, recklessly and negligently ordered him to go upon the cars having the stone, before they were detached, and that he obeyed such order.</p>