Chicago & Eastern Illinois Railroad v. O'Connor

Citations

• 119 Ill. 586
• 9 N.E. 263

Syllabus

<p>1. Action—whether right of action survives. Where the plaintiff, pend-ing an action brought by him to recover for a personal injury resulting from negligence, dies from some other cause than such injury, the action will survive, and may be prosecuted in the name of his administrator.</p> <p>2. Practice—how to avail of defect in the declaration. There is no authority for the practice of striking out portions of a declaration as not being sufficient. If the pleading is defective, a demurrer is the proper way to take advantage of the defect. In some cases its sufficiency may be tested on motion to exclude evidence, or bv instruction to the jury.</p> <p>3- Same —filing additional pleas. After a cause was at issue, the plaintiff died, and his administrator was substituted as plaintiff. The court allowed to be stocked out a certain part of the declaration, not changing the same materially, whereupon the defendant asked leave to plead de novo, and to file the plea of the Statute of Limitations, which was denied. It did not appear that such plea could have applied to any evidence that could have been produeed: Held, that there was no error in refusing leave to file the additional plea at that stage of the case.</p> <p>4. Evidence—testimony of deceased witness. Where a plaintiff dies after a trial had, in a case when the cause of action survives, and his administrator is made plaintiff, and the cause is again tried upon the same issues, it is competent for the administrator to prove, on the last trial, what the plaintiff testified to on the first.</p> <p>5. Appeal—reviewing facts. If there is evidence tending to show a right of recovery for a personal injury from negligence, its weight or sufficiency to sustain the finding and judgment below, and the reasonableness of the amount of the damages, are questions that belong only to the Appellate Court.</p> <p>6. Negligence—comparative negligence—of stating the rule in instructions. Under the present ruling of this court it is