No. 1430.

#### C. & A. R. R. Co. v. Schweitzer.

Opinion filed June 8, 1886.

Two points are made on this appeal, to wit: a defective declaration and that the damages are excessive. The defect, claimed, in the declaration, is the omission to state the day on which the fire causing the injury to appellee occurre . There was no demurrer to the declaration. The general issue was pleaded. The proof shows the fire occurred on the 17th day of December, 1883. No objectiou was made to the admission of the evidence. No instructions were asked or given. Motion for a new trial did not assign as a reason therefor any defect in the declaration. No motion was made in arrest of judgment. It is now too late to raise that question in this court: Webb et al. v. Alton Marine and Fire Ins. Co., 5 Gil. 225 ; Vasey v. Board of Trustees, 59 Ill. 190; Ladd v. Pigot, North Eastern Reporter, Vol. 2, No. 5, 505 ; Barnes v. Brookman, 107 Ill. 317 ; 1st Chitty Pleadings, 14th Am. Ed. 673 ; Lake Shore and Michigan Southern R. R. Co. v. O’Connor, filed in the Supreme Court at Ottawa, Nov. 1885, reported in Legal News, Dec. 5, 1885. “The law having intrusted the trial of fact to a jury the verdict will not be disturbed unless it is manifestly against the wmight of the evidence, or unless necessary to prevent a plain perversion of justice.” Chicago and N. W. Ry. Co. v. Ryan, 70 Ill. 211; Chicago and Rock Island R. R. Co. v. Hutchins, 34 Ill 108 ; Chicago, Alton and St Louis R. R. Co. v. Stover, 63 Ill. 358 ; Howitt v. Estelle, 92 Ill. 218. Although the court might not have reached the same conclusion as that reached by the jury, and might have been better satisfied if the damages had been less, still their finding is sufficiently supported by the evidence as not to authorize the court in setting it aside.

Judgment affirmed.

Attorneys, for appellants, Messrs. House & -Fey; for appellee, Mr. C. W. Bbown.

Opinion by

Welch, J.

Judge below, Geobge W.

Stipp.