118 Ill. App. 226 | Ill. App. Ct. | 1905
delivered the opinion of the court.
The first of the grounds upon which we are asked to reverse the judgment is, that the trial court erred in sustaining a demurrer to appellant’s plea of the Statute of Limitations to an additional count of the declaration, which count was filed long after the time within which the action could have been commenced under that statute. The only question is, whether the additional count stated a new cause of action. The original declaration alleged that plaintiff “ became a passenger ” of defendant the 19th day of October at the defendant’s station in Chicago. The additional count filed after the limitation of the statute become operative, alleges that the injuries complained of were inflicted the 18th of the same month while plaintiff was in and about one of the defendant’s stations “ for the purpose of becoming a passenger” of defendant. The other averments are the same in both counts. The cause of action as stated in both counts is the same. Plaintiff was a passenger in the eye of the law after she procured her tickets and was at the defendant’s depot waiting for a train with the purpose of becoming a passenger. I. C. R. R. Co. v. Treat, 179 Ill. 576-579. Whether she was at “ the ” station or at “ one of the stations ” of defendant is not a material difference in averment. The same proof would cover either averment. The cause of action stated either way is the same in legal force and effect. Chicago City Ry. Co. v. McMeen, 206 Ill. 108-115. As to the difference in the date between the 19th and the 18th, it appears (though the abstract fails to show it as it should) that in both counts the dates are alleged under a videlicet, the office of which is to indicate that the party does not undertake to prove the precise circumstances as alleged. This is axiomatic. In such cases he is not required to prove them. Bouvier’s L. Dic., vol. 2.
Appellant’s second ground of objection is that the court erred in refusing peremptorily to instruct the jury to find a verdict for the defendant, first because plaintiff was not in the exercise of due care because she was injured in getting onto the wrong train. This may have been the occasion of the alleged conduct of the conductor by which she claims to have been injured. It was certainly no excuse for removing her in the manner alleged, and if negligence on her part, was not contributory to the injury. It was a mere mistake evidently on her part, and. one not unlikely to occur under the conditions in evidence. The question of her contributory negligence was, however, submitted to the jury and must be deemed settled by the verdict.
Nor was she a trespasser as appellant’s attorneys argue. As a passenger in appellant’s care she was entitled to a high degree of care. She received no warning and direction indicating the proper train for her to take or in this case to avoid. But such alleged trespass, if trespass there had been, afforded no justification for violence such as is charged in this instance.
The objection that the instruction to the jury to find for defendant was erroneously refused because there is a fatal variance between the declaration and the proofs, in that by the latter it appeared that the race train in question was operated by servants of the Suburban Railroad Company, while the declaration alleges that the cars were managed and controlled by servants of the defendant, is not well taken. It is a question of pleading only. The operating company is regarded as the servant and agent of the defendant, who was in this case the owner of the train and the road. Penn. Co. vs. Ellett, 132 Ill. 654-659-660; Anderson v. W. C. St. R. R. Co., 200 Ill. 329-333. There is no necessity of averment of the agency. It was enough to prove it.
It is objected that the owners of tracks are not liable for the personal acts of the servants of another company running trains over it's road. There is no question in this case that appellee was, as before stated, a passenger of the defendant itself. It is said in C. & E. R. R. Co. v. Flexman, 103 Ill. 546-552. “The contract which existed between appellant as a cofnmon carrier and appellee as a passenger, was a guaranty on behalf of the carrier that appellee should be protected against personal injury from the agents or servants of appellant in charge of the train.” This guaranty extended, we think, in like manner to employees even of other companies running appellant’s trains over appellant’s road, so long as appellee was appellant’s passenger on appellant’s premises, and this upon grounds independent of the relationship of principal and agent between appellant and the Suburban Railroad Company.
We do not regard the verdict as excessive or as exhibiting passion or prejudice under the evidence, nor do we find anir material error in the instructions complained of.
The judgment of the Circuit Court must be affirmed.
Affirmed.
