45 Ill. App. 269 | Ill. App. Ct. | 1892
It will be perceived by a reading of the declaration, that this was a suit by the appellant against appellee to recover damages for the unlawful killing of the deceased, Chas. Kelly. The declaration charges negligence in backing a train on a dark night, upon one of the railroad tracks of appellee, at a certain depot in Belvidere, where appellant’s decedent was at the time pursuing it to take passage, and running over and killing him, while he at the time was in the exercise of care and caution.
The declaration is somewhat prolix, setting forth the surroundings of the accident with unnecessary particularity. It, however, clearly charges negligence on appellee and care on the part of the deceased. Those two allegations are questions of fact and not of law, and issuable, and are admitted by the demurrer as well as all the other issuable facts. If it be the case that the appellee was negligent in backing the train in the manner in which it did, and the deceased was in the exercise of care at the time, the appellant ought to recover, unless there are facts and circumstances averred in the declaration which bar recovery, notwithstanding appellee’s negligence and deceased’s exercise of care at the time the accident occurred. We find, however, no such facts stated in the declaration. Hegligence and caro are what, in law, are termed ultimate facts. They are the sum and conclusion of a variety of attending circumstances characterizing the main acts bearing on or tending to prove such ultimate facts. The rule of pleading is to charge them in this way and to depend on the evidence to establish the allegations. It is not necessary to plead the evidence necessary to prove negligence or the want of it. When an act is charged to have been done negligently or with care that raises an issue thereon, it then becomes a question for the jury. The court upon passing on the demurrer has no more right to take the case from the jury than if "it were being tried by the jury on issue joined. In fact, not so much; as, by the demurrer, these essential facts are admitted. If issue were joined on this declaration there may be many facts and circumstances in evidence tending to support the declaration on those issues not averred in the declaration, and of which the court, on passing on the demurrer, could not be informed. The court had no power on a hearing of the demurrer to deprive appellant of the right of trial by jury.
For the error in sustaining the demurrer and rendering judgment against appellant for costs, the judgment of the court below is reversed and the cause remanded.
Reversed and remanded.
