Toledo, Peoria & Warsaw Railway Co. v. McClannon

Citations

• 41 Ill. 238

Syllabus

<p>1. Practice—instructions—demurrer. Where it is urged that the declaration fails to contain an averment that it was necessary to have fenced the track of the railroad at the place where an accident occurred, it is not error for the court to refuse on the trial to instruct the jury that such an averment was necessary; if material, it should have been presented by demurrer. The evidence on the trial showing that a fence was necessary cured the want of the averment and sustained the verdict.</p> <p>2. New trial—verdict against the evidence. The question whether the road was bound to fence; whether it had been in use six months; whether plaintiff was the owner of the stock killed, and the amount of damages sustained, were questions for the jury, to be determined from the weight of the evidence, and, unless the finding is manifestly against the evidence, the verdict will not be disturbed.</p> <p>3. Pleadings—proof of merments. A plaintiff is not held to proof that the injury was committed on the day laid in the declaration, but may prove it to have been done at any time within the statute of limitations.</p>