| Ill. | Sep 27, 1884
delivered the opinion of the Court:
We find no error in the judgment of the Appellate Court. The judgment of the Superior Court of Cook county was properly affirmed. The only question of law presented by the record relates to the propriety of the instruction directing the jury to find for the defendant, upon the ground stated in the instruction, — that “there is no evidence to sustain the material allegations of the plaintiff’s declaration.”
The gist of the complaint, as stated in the declaration, is, that the defendant was in possession and occupancy of premises adjoining a public highway, and that on these premises so adjoining the public highway and so possessed by the defendant, was a dangerous pit, and that by reason of such possession and occupancy of the pit so situate, it was the duty of defendant to protect the public against liability to injury by fallíng into the pit, by covering the same, or otherwise guarding against the danger, and that defendant failed to perform that duty. A plaintiff can not recover except by proof of the case stated in his declaration. The probata must support the allegata. It does not tend to support the allegations of this declaration to furnish proof tending to show that defendant was possessed of a public street frequented by the public, and by reason of the possession of the public street it became the duty of defendant to make and keep this public highway in a safe condition, and in violation of this duty it had negligently permitted a dangerous pit adjoining such highway to be and remain without any barrier to protect persons passing from falling therein; nor does proof tending to show a negligent failure of the defendant to keep such highway so in its possession safe, by permitting to be and remain in said highway a dangerous pit wholly unguarded by any barrier, — and this, for the reason the declaration charges defendant with no such duty. It is not necessary here to decide whether the proofs given would have made it the duty of the court to have submitted the case to the jury under a declaration charging the ease which the proofs are supposed to sustain. It is enough that the proofs utterly fail to tend to show that defendant was in possession of the premises outside of and adjoining a public highway where it is alleged this dangerous pit was. This allegation can not be treated as surplusage. Without it the declaration shows no cause of action. It is not sufficient, in a declaration, to say, generally, that it was the duty of defendant to cover or otherwise protect a dangerous place. The pleader must state facts from which the law will raise the duty. Such duty in relation to this pit may arise from the fact, if it be so, that the defendant excavated the pit. Such duty may rest upon one in possession and occupancy of such pit. Such duty may rest upon a city occupying a street adjoining such pit, upon the ground that the permission of the pit renders the street unsafe; and if the pit be in the street, the duty may rest upon the city to keep covered and protected all dangerous pits located in the streets. On these questions we need not here pass. What we rule is, that under a declaration charging defendant with the duty of covering or protecting a dangerous pit, upon the allegation that the pit is located on premises occupied by defendant and adjoining a public highway, plaintiff can not recover by proving that defendant is in possession of the highway, and as occupant of the highway owes that duty to the public, whether the pit be in the highway or adjoining the highway.
The judgment of the Appellate Court is therefore affirmed.
Judgment affirmed.