City of Elgin v. Kimball

Citations

• 90 Ill. 356

Syllabus

<p>1. Ground or recovery—presumption. Although a declaration to recover damages to goods may not be broad enough to admit a recovery of damages for an injury to the building containing them, the judgment will not be reversed on account of the admission of evidence as to the damages to the latter, where the recovery is not so large as the evidence shows the damages to have been to the goods. In such case it will be presumed the jury allowed no damages except as to the goods.</p> <p>2. Municipal corporation—liability for damages resulting from manner of changing grade of street, etc. While a city may change the grade of a street at will or pleasure, yet, where it is changed and sewers or drains are constructed for the purpose of carying off surface water, and they are constructed in such an imperfect manner that the water is turned into the basement of a building of a lot owner on the street, the city will be liable for such damages as may arise from the defective improvement.</p> <p>3. Practice—time to taTce advantage of variance. In an action to recover damages caused to a building, the defendant can not take advantage of a variance between the averment and proof as to the location of the building, in this court, for the first time. If he fails to make the objection in the court below so as to give an opportunity to obviate it by amendment of the pleadings, he will be held to have waived it.</p>