Illinois Central Railroad v. McKee

Citations

• 43 Ill. 119

Syllabus

<p>1. Pleading—variance between allegations and proofs. Where, in an action against a railroad company for the killing of a horse, the declaration simply averred it to be the duty of the company to erect, maintain and keep in repair the fences on its roadway, and, that, by means of neglect in keeping them in repair, the horse had strayed upon the track and was killed,—held, that testimony showing that the horse strayed upon the track through a gate at a farm crossing, which had been left open, was inadmissible, as the declaration contained no averment, that the gate was not kept closed. A plaintiff can only prove what he alleges.</p> <p>2. Neglect in maintaining and keeping in repair a fence, whereby a person is injured in his property, is a ground of action totally distinct from that of carelessness in leaving open a gate on the line of the fence; and, when an action is predicated upon the latter ground, it must he so averred in the declaration.</p> <p>3. Same — deela/ration must state material facts. The declaration, in every case, must contain a full and explicit statement of all the material facts upon which a recovery is sought, that the defendant may he prepared to meet them.</p> <p>4. Instructions—u/pon matter inadmissible in evidence. It is error for the court to instruct the jury upon matters inadmissible in evidence under the pleadings, but which, in fact, were admitted in proof.</p> <p>5. Eailroad companies—Mobility for negligently leaving open gate —- and when not Viable. A railroad company is not required to keep a patrol on the line of its road to see that the gates at farm crossings are kept closed; but, if its employees, seeing such a gate open, do not close it, when not opened by a person to whom an injury afterward results, the company is liable for such injury. If, however, the gate is opened by the person injured, and by his neglect left open, no action will lie for an injury resulting to him, by reason of such act and neglect.</p>