196 Ill. 281 | Ill. | 1902
delivered the opinion of the court:
Appellant urges that the verdict of the jury is against the preponderance of the evidence. There was a sharp conflict as to whether or not Kindt was foreman of the gang and whether or not the act was occasioned by contributory- neglig'ence. Appellant only claims that the verdict is against the preponderance of the evidence, and that the evidence of the brother of the deceased should not be given credence. The question of whether Kindt was a vice-principal or was a fellow-servant with appellee’s intestate, and the question of contributory negligence, were fairly presented to the jury by proper instructions, and it is not our province to weigh the testimony and determine where the truth of it lies. There being testimony in this case, if believed by the jury, fairly tending to support plaintiff’s right to recover, the court did not err in refusing to take the case from the jury.
We think the amended declaration did not state a new cause of action. The gist of both counts was the negligent shaking of the brace. The fact that the rope was untied was a mere incident in causing the brace to fall. The act which caused it to fall was the shaking it out of the flange. It no more stated a new cause of action than if the plaintiff had alleged in an additional count that the foreman negligently pulled the brace out of the flange with his hands, instead of negligently placing the wrench in a hole in the brace and shaking it out of the flange. This is not a case where the original declaration did not state a good cause of action. Having stated a good cause of action plaintiff could amend his declaration at any time, so long as he did not charge a different cause of action. (Swift & Co. v. Madden, 165 Ill. 41.) The negligence did not consist in untying the rope. When the braces were placed in their proper position it became necessary to untie the rope. The brace was practically in its position and deceased was attempting to insert a bolt. As the hole of the I-beam and the hole of the brace were not in line, it became necessary to move the brace, and it was the negligent moving and shaking of the brace that was charged as the negligence in both counts. Had the foreman first shaken the brace and got it out of position and then untied the rope and caused it to fall, then the contention of appellant would have greater weight. But the primary act which caused the injury was the shaking of the brace, and under that allegation it would have been proper to have shown that the flanges were not wide enough or that the bolts were not strong enough, or that the position of the brace or beam, or the means by which the brace was suspended, were not in such condition as to justify the negligent shaking of the brace. (Illinois Central Railroad Co. v. Aland, 192 Ill. 37; Ames & Frost Co. v. Strachurski, 145 id. 192.) It might be shown under the original declaration, as a part of the res gestce, that the rope had been loosened, and also as giving character to the shaking of the beam, and if it had been loosened by a fellow-servant or by the deceased himself, yet the negligent shaking of the brace by a vice-principal, which caused the injury, would support a verdict.
There was no error in sustaining the demurrer to the plea of the Statute of Limitations to the amended count.
The judgment of the Appellate Court is affirmed.
Judgment affirmed.
