Wabash, St. Louis & Pacific Railway Co. v. Coble

Citations

• 113 Ill. 115
• 1885 Ill. LEXIS 672

Syllabus

<p>1. Practice—time to object—for variance between allegations and proofs. This court will not consider a question of variance in the allegations and proofs, when no motion has been made in the trial court to exclude the evidence on the ground of variance, or for an instruction to the jury in respect of the same.</p> <p>2. Appeal—reviewing facts. Where this court can not say the evidence heard on the trial of an action for negligence does not tend to sustain the judgment, the action of the Appellate Court in affirming the judgment of the trial court is conclusive on the disputed questions of fact.</p> <p>3. Allegations and proofs — on the question of negligence. The object of written pleadings is to apprise the defendant of the ground of action relied on by the plaintiff, and thereby afford him an opportunity to meet the specific ground of complaint, and it is not admissible that one ground of negligence be alleged and a recovery be had upon another and distinct ground. It is error to instruct the jury that they may find the defendant liable for any acts of negligence different from those alleged in the declaration.</p> <p>4. So in an action against a railway company to recover for damages for a personal injury, at a public crossing of a street, the court instructed the jury, for the plaintiff, that railroad companies, in operating their trains and engines, must be held, in crossing public highways and thoroughfares, so to regulate the speed of their trains, and to give such signals to persons crossing, that all may be apprised of the danger of crossing the railroad track, and that they should keep a lookout, so as to see, and as far as possible prevent injury to others exercising their legal rights, and that for an injury resulting from a failure of any such duties they are liable, provided the person injured has used all reasonable precaution to avoid injury. The failure to give signals of danger to persons crossing the track, or to keep a lookout to avoid injury