We have examined the unnecessarily voluminous record in this ease with patience, care and very great labor, for such a case, and are fully convinced that the judgment below ought to be reversed for reasons which we will endeavor to state with statutory brevity: First. It is a rule universally applicable in this class of cases, as well as others, that the allégations of the declaration and the proofs must correspond. T., W. & W. R. R. Co. v. Foss, 88 Ill. 551; Gavin v. The City of Chicago, 97 Ill. 66; and in harmony with the above is a further rule, that if the pleader, though needlessly, describe the tort and the means by which it was effected, with minuteness and particularity, and the proof substantially vary from such statement, the plaintiff must fail in his action. City of Bloomington v. Goodrich, 88 Ill. 558; Fitzsimmons v. Inglis, 5 Taunt. 531.
Now, independently of the question of fact disputed on the trial, whether the plaintiff was thrown from the hose cart by reason of one of its wheels striking the man-hole shown to have been situated on Monroe street, a very considerable distance west of the corner of that street and Jefferson, the proof substantially varied from the description of the tort given in the plaintiff’s declaration. That located the man-hole which caused the injury on Monroe street, near the corner of Jefferson street. There was in fact one located on Monroe street near the corner of Jefferson, while the plaintiff sought wholly to apply his proofs to one eighty feet west of it. But what is still worse, the proofs substantially varied from the description of the tort in respect to that man-hole. The allegation was that the city permitted the pavement and filling to wear away, near, about and around it. The proof was that blocks had been taken out by trespassers, to be used as fire-wood, in spots about that locality. The allegation was that the manhole, by reason of such wearing away, protruded and stood tip from six to eight inches above the level of the pavement. That the proof entirely failed to show. Then, aside from such failure of proof, we are of opinion that the evidence was overwhelmingly against the theory that the plaintiff was thrown from the hose cart by reason of one of its wheels striking that or any other sewer cap.
Secondly. We are of opinion that both the first and second instructions given on behalf of the plaintiff were erroneous. By the first, the jury were directed that if said hose cart was being driven along and upon one of the public streets of said city, and came in contact with a sewer cap in or about the middle of said street, and that said sewer cap protruded six or eight inches above the level of the street, and that by reason thereof said hose cart was capsized and the plaintiff thereby injured, and if the jury further believe from the evidence that said sewer cap made it unsafe to travel over and along said street, and had been in that condition for several weeks or months prior to said day, and that the plaintiff and Captain Smith, the driver of the cart, were, at the time, exercising ordinary care, then the city was liable. The allegation of the declaration was that the man-hole protruded from six to eight inches above the level of the pavement and street. There was no proof that it protruded at all above the level of the pavement. The defect shown was merely that some of the blocks of the pavement had been taken out by trespassers. Such taking of a few blocks out of the pavement could not cause the man-hole or sewer cap to protrude or be raised up from six to eight inches above the level of the pavement. So that proposition was improperly submitted to the jury. The declaration avers that the city had notice of the situation of this man-hole as described; but the instruction not only fails to submit the question of notice to the jury, but assumes to declare as matter of law, that if the sewer cap had so protruded, and thereby made the street unsafe for a period of several weeks previously, the city would be liable.
Notice was not only averred but it was indispensable to liability on the part of the city, for the negligence or non-feasance charged. Mayor v. Sheffield, 4 Wallace, 169; City of Chicago v. Major, 18 Ill. 360.
“ There is no rule of law prescribing for what length of time the continuance of a defect in a highway shall constitute notice of its existence. Whether notice could be infei’red from the existence of the defect is to be determined by the jury. 2 Thompson on Neg., p. 1238, and cases in note 13.
The second instruction was erroneous, because in directing the jury how to determine the preponderance of evidence, it excluded from their consideration circumstances which were in evidence and undisputed, such as the marks and injury to the spokes of the nigh wheel of the cart, and upon the end of the pole of the truck, which was close upon the lióse cart when it suddenly turned from Jefferson on Monroe street. Those mai’ks strongly tended to support the witnesses for the defendant, who testified that it was the collision of the pole of the hook and ladder truck with the wheel of the cart which caused the latter to upset, and not the manhole.
The judgment of the court below will be reversed and the cause remanded.
Judgment reversed.