182 Ill. 18 | Ill. | 1899
delivered the opinion of the court:
It is first insisted that there was a variance between the declaration and the evidence, and on that ground the court should have excluded from the consideration of the jury the second count of the declaration of January 28, 1896, and the second and fourth additional counts of July 15, 1897. At the close of plaintiff’s evidence defendant’s counsel moved the court “to eliminate these counts from the consideration of the jury, and to exclude all evidence in the case as to these counts, upon the ground of variance,” which motion the court overruled. It is a well settled rule that a party desiring to take advantage of a ’ variance between the declaration and the evidence should object to the evidence when offered and point out wherein the variance consists, so that the other party may amend the declaration and thus avoid the objection. If this course is not pursued the objection to the evidence will be regarded as waived. (Swift & Co. v. Madden, 165 Ill. 41; Westville Coal Co. v. Schwartz, 177 id. 272.) Moreover, the plaintiff did not rely exclusively on the counts objected to, but relied on other counts of the declaration under which it is not pretended the evidence was inadmissible. If the evidence was admissible under any one count of the declaration it could not be excluded. The rule laid down in Chicago, Burlington and Quincy Railroad Co. v. Warner, 108 Ill. 538, applies here. It isdhere said (p. 548): “It is also contended the plaintiff failed to prove his case as laid in the declaration, and that the court therefore erred in not excluding the evidence from the jury. We do not concur in this view. ' The mistake of appellant on this branch of the case is in assuming that appellee bases his right of recovery exclusively upon ‘the original improper construction of the car.’ It is true the declaration proceeds upon this theory, but not upon this theory alone, for, as already shown, it is expressly averred in the amended declaration that it was the duty of the defendant ‘to furnish for the use of its employees properly and carefully constructed cars, with end ladders, side handles and steps attached thereto,’ and the declaration further on expressly negatives the performance of this duty. This being so, the plaintiff was not bound, at his peril, to prove both branches of his case. It was sufficient if he proved either. It is a familiar doctrine of the law that all torts are severable, - and therefore, in an action ex delicto, it is immaterial that all the averments of the declaration are not proved as laid. It is sufficient if such of them as are so proved show a good cause of action. Applying this principle to the question in hand, the position of appellant is clearly not tenable. To the suggestión the declaration was fatally defective, and the motion to exclude the evidence should therefore have been sustained, it is sufficient to say that the defendant, by pleading to the merits, admitted the sufficiency of the declaration, and it is not readily perceived how its sufficiency could be subsequently raised by a mere motion to exclude the evidence from the jury. We are aware of no practice authorizing such a course. If the defendant desired to question the sufficiency of the declaration it should have demurred, or moved in arrest of judgment. (Chicago, Burlington and Quincy Railroad Co. v. Harwood, 90 Ill. 425; Roberts v. Corby, 86 id. 182.) Having done neither, it is unnecessary to determine whether the plaintiff was bound to aver in the declaration he had no notice of the defective construction of the car, as the declaration was clearly sufficient after verdict.” Here, as in the case cited, the defendant pleaded to the counts in question, and their sufficiency cannot be raised by motion to eliminate them from the case or exclude the evidence from the consideration of the jury.
It is also claimed that the court- err.ed in refusing to instruct the jury to disregard the second additional count of the declaration, filed January 28, 1896, and the second and fourth additional counts filed July 15, 1897. It is conceded that the declaration contains one or two counts which are good and to which the evidence is applicable, and that these counts, or one of them, are sufficient to sustain the judgment. Where such is the case, it was expressly held in Consolidated Coal Co. of St. Louis v. Scheiber, 167 Ill. 539, that the refusal of the court to instruct 'the jury is not reversible error. The same rule was declared in Chicago and Alton Railroad Co. v. Anderson, 166 Ill. 575, and the rule established in those cases must control here.
It is argued at some length in the briefs that the verdict is against the weight of the evidence. That was a question properly before the Appellate Court, but it does not arise here.
It is also claimed that the alleged insufficiency of help was not the proximate cause of plaintiff’s injury. Upon an examination of the evidence bearing on this question 'it will be found that it fairly tends to prove that if more help had been furnished to assist in the work plaintiff was required to perform, as the evidence tends to prove appellant promised appellee should be furnished, appellee would have been removed from the place where the beef was hoisted, and hence would not have been exposed to the danger which resulted in the injury. But however that may be, whether the negligence of appellant was the proximate cause of the injury was a question of fact, which was settled by the judgment of the Appellate Court affirming the judgment of the circuit court. Pullman Palace Car Co. v. Laack, 143 Ill. 242, and cases cited.
It is also claimed that the court erred in allowing the appellee to exhibit his injured arm to the jury. Whether the trial court will permit an injured limb, to be exhibited to the jury for any proper purpose is a matter within the discretion of the court, (Chicago and Alton Railroad Co. v. Clausen, 173 Ill. 100,) and unless there has been an abuse of discretion the ruling of the circuit court will not be disturbed/ Here it is manifest, in view of the verdict, that no injury resulted from the ruling' of the court on the question.
Objection is made to certain remarks of counsel for appellee in his closing argument to the jury. The record shows that the objection of appellant’s counsel was sustained by the court. The ruling of the court, therefore, being in appellant’s favor, appellant cannbt be heard to complain.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
