Toledo, Wabash & Western Railway Co. v. Foss

Citations

• 88 Ill. 551

Syllabus

<p>1. Pleading and evidence—as to the character of negligence. In a suit to recover damages for a personal injury occasioned by the negligence of the defendant, the allegation and proof must correspond. The plaintiff can not aver negligence in one particular, and prove, on the trial, that the defendant was guilty of negligence in another.</p> <p>2. In a suit against a railroad company for damages on account of a personal injury, alleged to have been caused by the defendant carelessly running its tra.in against a horse, it is not competent for the plaintiff to prove that the railroad track was not properly fenced, or that the cars were not provided with steam brakes, or any other negligence than that averred.</p> <p>3. Where the only negligence averred in the declaration, in a suit, against a railroad company, is, that it ran its train carelessly, it is error to instruct the jury that, if the defendant was negligent in its failure to use air brakes, or other proper machinery in running its train, the plaintiff is. entitled to recover.</p>