{ "id": 2473429, "name": "Chicago City Railway Company v. Mary Carrick", "name_abbreviation": "Chicago City Railway Co. v. Carrick", "decision_date": "1907-04-12", "docket_number": "Gen. No. 13,022", "first_page": "332", "last_page": "335", "citations": [ { "type": "official", "cite": "133 Ill. App. 332" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "212 Ill., 37", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3311756 ], "opinion_index": 0, "case_paths": [ "/ill/212/0037-01" ] }, { "cite": "72 Ill., 155", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2711739 ], "opinion_index": 0, "case_paths": [ "/ill/72/0155-01" ] }, { "cite": "14 Ill. App., 128", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4875477 ], "opinion_index": 0, "case_paths": [ "/ill-app/14/0128-01" ] }, { "cite": "24 Ill. App., 128", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5780651 ], "opinion_index": 0, "case_paths": [ "/ill-app/24/0128-01" ] }, { "cite": "11 Ill. App., 215", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5778680 ], "opinion_index": 0, "case_paths": [ "/ill-app/11/0215-01" ] } ], "analysis": { "cardinality": 491, "char_count": 8459, "ocr_confidence": 0.534, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08120531351441725 }, "sha256": "0368048a16af563e3a7fb0fc6e9b5f5e39b1c984982d016b97037219d41f2ed6", "simhash": "1:54ac59f53989ec62", "word_count": 1538 }, "last_updated": "2023-07-14T19:31:03.243405+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Chicago City Railway Company v. Mary Carrick." ], "opinions": [ { "text": "Mr. Presiding Justice Freeman\ndelivered the opinion of the court.\nIt is contended in behalf of appellant that the verdict in favor of appellee was not justified by the evidence, \u201cthat there is a fatal variance between the allegations of the declaration and the proof.\u201d\nThe first count of the declaration charges that appellant\u2019s car was negligently \u201cjerked\u201d forward, in consequence of which \u201cplaintiff was thrown with great force and violence upon the ground and dragged along the same at a rapid rate of speed three hundred feet, by means whereof she sustained serious\u201d injuries, etc. The second count likewise alleges that defendant \u201ccarelessly and negligently started said car with a violent, rapid and sudden jerk and motion, by means whereof plaintiff was thrown upon the ground and dragged along and upon and over the same at a rapid rate of speed a distance of three hundred feet,\u201d by means whereof she was injured. Plaintiff\u2019s evidence, it is claimed, does not sustain these allegations and it is urged that where the pleader, though needlessly, describes the tort and the means by which it is effected with minuteness and particularity and the proof substantially varies from the statement, there will be a fatal variance and the plaintiff must fail in the action.\nThe testimony of the plaintiff is to the effect that when the car stopped other people went out in front of her. She says \u201cI did not go out at all, went part way out and I was glad I did not get out. I went out with them as close as I could go.\u201d She states that she \u201cgot out on the platform and I had one foot down on the step and in the act of putting the other one down when the car started with a jerk and gave me a violent throw back against the dashboard. I shall never forget that. Really I could not tell how I lay, but I lay there and I know my feet were on the street.\u201d She states that her \u201cfeet were dragging on the street,\u201d that a gentleman caught her by the collar of her coat, that \u201che pulled me up a little bit. I was the same with, my feet on the ground of the street,\u201d that \u201che put his leg across me in front,\u201d that her \u201climbs were scratched a little bit and they were kind of bruised like, but I did not think anything of that, it did not hurt like the other.\u201d She complains of having been injured on the shoulder, back of her head and in the elbow, that \u201cmy arm was the worst of all.\u201d Her testimony is that while the car was in motion after she fell against the dashboard \u201cI was lying right back on the platform or partly this way,\u201d and that she had a child in her arms which she continued to hold in that position until the car stopped. The man who took hold of her collar, and as she states pulled her \u201cup a little bit,\u201d testified in her behalf and states that \u201cwhen I grabbed her she was sitting or lying on the body of the edge of the platform and edge of the first step, with her feet out in the street; that is hanging over the side of the car.\u201d Another witness in plaintiff\u2019s behalf\u2014a fellow passenger\u2014testifies that \u201cit looked as though she was sitting with her feet down on the lower step. Hot on the lower step, on the second step, the step off the platform down. I am referring to the edge of the platform as being the first step. I thought there was a lower step and it looked to me then as though one of her feet was down on the step just below the platform.\u201d This witness states that her \u201cview was not obstructed in any way,\u201d that appellee\u2019s \u201carm and side were up against the dashboard,\u201d and that such \u201cwas the position she was lying in there all the time I saw her during the time the car was going these two blocks,\u201d that \u201cher body was practically all on the platform.\u201d\nIt is clear from this evidence that it does\" not tend to support the averments of the declaration that appellee \u201cwas thrown upon the ground and dragged along and upon and over the same,\u201d \u201cby means whereof she sustained serious injuries.\u201d A physician who saw her about three days after the accident states that he examined her legs and \u201cfound some bruises and abrasions\u201d; but these are not the injuries she complains of, and that they were not in any way serious is admitted. She was not thrown upon the ground at all, but upon the platform, and if it be true, which the evidence of her own witnesses seems to dispute, that her feet hung over the step and on the street, there is no evidence of'injury from that cause, nor does her evidence contain any complaint of such injury. The bruises and abrasions on her legs which it is said were found, might readily have resulted from contact with the platform and steps. The declaration distinctly charges that it was from being thrown on the ground and dragged along that plaintiff received the injuries for which she seeks to recover, and this averment is-not supported, so far as we can discover, by any evidence whatever. Under these circumstances we see no escape from the conclusion that there is a fatal variance between the proof and the declaration. In L. S. & M. S. R. R. Co. v. Beam, 11 Ill. App., 215-219, it was found that in describing the tort and the means by which it was effected there was a variance because \u201cthe proof wholly fails to show that the horse was within any such specified distance of the locomotive, but does1 show that he was much farther away when he became frightened\u201d; and it is said: \u201cIt was not only needless, but indiscreet in the pleader to descend to such minuteness and particularity of description for by the rules of law, indispensable to the true purposes and objects of good pleading, the appellees would be bound to prove the statement substantially as made. This she failed to do. The rule governing in such cases is concisely stated thus: \u2018But if the plaintiff though needlessly describe the tort and the means adopted in effecting it with minuteness and particularity, and the proof substantially vary from the statements, there will be a fatal variance which will occasion a non-suit, 1 Chit, on Pl, p. 392.\u2019 \u201d The case at bar is much stronger than the one we have cited. In C., B. & Q. R. R. Co. v. Morkenstein, 24 Ill. App., 128-131, the judgment was reversed because a question had been submitted to the jury of a wilful tort, when there was no evidence sufficient to go to the jury upon that question. See also City of Chicago v. Degnan, 14 Ill. App., 128\u2014134. In T. W. & W. Ry. Co. v. Morgan, 72 Ill., 155\u2014157, it is said: \u201cBut conceding it was this fire that caused the injury, it is an unanswerable objection to the right claimed to recover that the declaration counts upon no such state of facts, hence the judgment can not be maintained.\u201d In the case at bar, if it be conceded that the jerking of the car caused the injuries complained of by appellee, we are of opinion that the objection to recovery is unanswerable, since the declaration counts upon no such state of facts, but alleges the injuries were occasioned by an entirely different cause. Wabash Ry. Co. v. Billings, 212 Ill., 37\u201441, is a case in point. It was held that \u201cthere was a clear variance, which was brought to the attention of the trial court and the plaintiff and it was not cured by amendment.\u201d In like manner attention was called to the variance in the present case in connection with a motion at the close of all the evidence to instruct the jury to find defendant not guilty, and the objection was not cured by amendment\nFor the reasons indicated the judgment of the Circuit Court must be reversed and the cause remanded.\nReversed and remanded.", "type": "majority", "author": "Mr. Presiding Justice Freeman" } ], "attorneys": [ "Wiliiam J. Hynes, John E. Kehoe and Watson J. Ferry, for appellant; Mason B. Starring, of counsel.", "S. P. Douthart and W. A. Brendecke, for appellee." ], "corrections": "", "head_matter": "Chicago City Railway Company v. Mary Carrick.\nGen. No. 13,022.\n. 1. Variance\u2014what constitutes fatal. Where the declaration distinctly charges that the plaintiff received the injuries in question by being thrown to the ground and dragged along, and the proof does not support such averment, a fatal variance exists.\n2. Tort\u2014how description of, contained in pleadings, must he proven. Notwithstanding the pleader may have been needlessly minute in describing the tort complained of, yet the obligation is upon him to prove the tort charged substantially as pleaded.\nAction in case for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Thomas G. Windes, Judge, presiding.\nHeard in the Branch Appellate Court at the March term, 1906.\nReversed and remanded.\nOpinion filed April 12, 1907.\nWiliiam J. Hynes, John E. Kehoe and Watson J. Ferry, for appellant; Mason B. Starring, of counsel.\nS. P. Douthart and W. A. Brendecke, for appellee." }, "file_name": "0332-01", "first_page_order": 350, "last_page_order": 353 }