This is an action on the case by the appellee against the appellant, in which he has recovered $30,000 for injuries sustained by him through the alleged negligence of the appellant. On the 1st day of May, 1888, about five o’clock in the morning, a sleeping car, run by the appellant, was, by reason of a broken rail, derailed and partly overturned, and the appellee, who was asleep in a berth in the car, thrown across the car into a berth opposite.
From that as a cause, he and his witnesses trace injuries which render the residue of the life of a business man, of the age of twenty-two years, then earning about §2,500 a year, pecuniarily of no value. Add to that pecuniary loss the physical and mental pain and suffering, and no calculation can bg made that will show that the damages exceed fair compensation.
The fact that the accident happened from a broken rail, imposed upon the appellant the burden of showing that it had used “ the highest, reasonable and practicable skill, care and diligence” as to “the fitness of the road.” C. & A. R. R. v. Pillsbury, 123 Ill. 9; G. & C. U. R. R. Co. v. Yarwood, 15 Ill. 468. The verdict of the jury is against it upon that issue, and it is justified by the evidence; and the verdict also settles the questions as to whether the appellee was riding upon a ticket he had once before .used, and the cause and extent .of his injuries.
In our view of the case, the discussion of three questions of law presented by the appellant, is all that our duty requires of us.
First. The declaration avers, “ and the said plaintiff, at said Kirksville, then became and was a passenger in a certain train of the said defendant, on the said railroad, to be carried, and was accordingly then being carried in the said train from Kirksville to said Glenwmod Junction.” It is certain that he got upon the train at Moberly, and had a ticket from Moberly to Ottumwa, to which place he intended to go when he took passage, and after a little delay did go, by cars that had safely passed the broken rail. Moberly and Ottumwa are places between which Kirksville and Glenwood Junction lie, and the accident occurred between the two last named places. It is said that this is a fatal variance; if it be, the error is in the record, for at the close of the testimony of the appellee, he being his own first witness, the appellant moved to strike out his testimony because of the variance, which, being denied, it excepted. In this record is a feature which gives special importance to this point. The appellant claims that he had once used the ticket in his possession over the whole route named in it, and was fraudulently using it again, so that it did not owe to him the duty of a carrier to a passenger; and thence it infers that the termini of his journey was intentionally and wrongly stated in the declaration, to mislead it as to the identity of the appellee. We must treat the question as one of law, without regard to that inference.
It may be noticed, however, that nothing in the record indicates that it was misled; the trial ended November 25, 1890, and the motion for a new trial was pending until January 6th, following, and no showing was made of newly discovered testimony as to a fraudulent use of the ticket.
The action is not upon any contract but upon the common law duty.
The statement that he was being carried from one place to another was mere inducement—which, “ in an action of assumpsit is in the nature of a preamble,” (1 Chitty on Pleadings, 290,) and in tort a concise statement of “the circumstances which gave rise to the defendant’s particular duty.” Ibid. 383.
A variance in the statement -of the inducement has been often less regarded than in the statement of what constituted the gravamen of the action. Plumleigh v. Cook, 13 Ill. 669.
Here the duty of the appellant toward the appellee, if he was lawfully a passenger at the place of the accident, was the same whether he was riding one mile or a hundred.
True, Chitty says that in a case against a carrier a variance in the statement of the termini of the journey will be fatal (1 Chitty on Pleadings, 385); but in the case referred to by him there was no variance. Ditcham v. Chivis, 4 Bing. 706.
Almost at the same time that the Common Pleas was deciding that case, the King’s Bench held (also holding that in fact there was no variance) that such variance was immaterial. Woodward v. Booth, 7 Barn. & C. 301.
And a few years later the Common Pleas in Gladwell v. Steggall, 8 Scott, 60, held that in an action by a child against a surgeon for malpractice, in which she alleged that she employed him, the fact that she did not, was immaterial. The ground of these last two decisions was that the breach of duty was the gravamen of the action.
If the words “became and” and “to be carried” were stricken out of the averment, it would remain (assuming that there was no fraud) literally true; and the proof being of more, but not qualifying what is alleged, would not constitute a variance; and whatever may be stricken out without changing the meaning of what is left, and still leave a ground of action, need not be proved. 1 Greenleaf on Ev., Secs. 51, 67. Stating when the appellee became a passenger and where he •was to be earned, in no manner qualifies the averment that he was a passenger, being carried from Kirbsville to Glenwood Junction; nor did proof that his journey began and was to end beyond those places affect his condition as a passenger between them. Ho case has been cited, nor have we found any, holding good such an objection as is here made, on the ground of variance.
Second. The declaration states the accident and that the appellee was thrown across the car, and then avers, “by means whereof, then and there, the spine and spinal column, including the spinal cord of the said plaintiff, became and were greatly bruised, hurt and injured, and the said plaintiff suffered and incurred an injury, of a kind known as concussion of the spine;” * * * “and also by means of the premises the said plaintiff then and there became and was sick, sore, lame and disordered, and so remained for a long time, to wit, thence hitherto.”
The appellee admits that at the time of the trial and for a considerable time before, the technical name of the disease he then had is “ myelitis.” The medical witnesses say that is not “concussion,” but “chronic inflammation” of the spine. Among the causes producing it, may be concussion of the spine.
How the averment of the declaration is that at the time of the accident the appellee “ then and there * * * suffered and incurred an injury, of a kind known as concussion of the spine.”
It is an averment of what then happened, not of subsequent effects.
The averment as to concussion might be stricken out, and still, under the other averments, all the effect of the accident upon the health of the appellee, which he alleged, might be proved. C., B. & Q. R. R. Co. v. Sullivan, 21 Ill. App. 580; Eagle Packet Co. v. Defries, 94 Ill. 603; Ehrgott v. Mayor, 96 N. Y. 264.
The rule cited by the appellant that pleadings are to be construed most strongly against th'fe pleader, applies when they are tested by demurrer, and for that reason on trial he is only required to prove them in the sense most favorable to himself. “The minimum of allegation is the maximum required in proof.” Francis v. Steward, 5 Adol. & El. (N. S.) 984.
The objection that there is a variance between the allegation and proof, of the nature of the injury, is without force.
Third. The appellee put to his medical witnesses a long hypothetical question, reciting the accident and the previous and subsequent condition of the appellee (on his version of the evidence), and concluding, “would you say that the accident did or did not produce the condition of which these are the symptoms ?”
The first witness to whom that question was put, was one of the physicians who had several times examined the appellee. The appellant objected to the question upon the grounds that it was not supported by the evidence in the case, and that the witness was not a proper witness to answer a hypothetical question, as he had made frequent examinations of the person of the appellee.
The same question was put to other medical witnesses for the appellee, and objected to by appellant without specifying the grounds of objection. Neither of the grounds of objection to the question specified at the trial are now insisted upon, but it is urged that the conclusion of those witnesses that the accident produced, etc., is not warranted by the evidence as to the manner of the accident, opposed as it is by the opinions of the medical witnesses examined upon the same question by the appellant. That was a question for the jury.
The form of the conclusion of the question was wrong, for many of the elements upon which the conclusion was to be reached were outside of the field covered by surgical science. While a surgeon may testify whether external violence having a specified effect upon the person may produce a given result, for that is a part of his science, it is not competent for him to say that a described movement of a car and of the person of the patient, will or will not produce that specified effect upon his person. This subject is discussed in Nat. G. L. & F. Co. v. Miethke, 35 Ill. App. 629.
But that objection was not made at the trial. A slight change in the form of the question, making the effect upon the person of the appellee (as in his view of the evidence it tended to prove) a part of the hypothesis, and calling upon the witness for his then opinion as a sworn witness at the trial, as to whether such specified effect upon his person might or might not account for his later condition, would have properly given to the appellee all the benefit he got by the question as put.
Even matters of substance may be waived by putting, at the trial, the claim or objection upon a special ground, and thereby directing the attention of the court away from them. In re Story, 20 Ill. App. 183; Sullivan v. People, 122 Ill. 385; C. & E. R. R. Co. v. Holland, 122 Ill. 461.
The two last cases are not in point as to the attention of the court being diverted by the special ground upon which an objection is put, but that a removable ground must he specified in order to make the objection available upon appeal. In the case cited from 35 Ill. App. the fatal question was, in effect, how did the gas get into the scrubber? which by no change could have been made competent.
Material, incompetent evidence, excepted to, is not error if objected to on special grounds other than the right one. “ When specific objections are made to the admission of testimony, none of which are tenable, other objections must be regarded as waived.” Wickenkamp v. Wickenkamp, 77 Ill. 92.
How when the hypothetical question was repeated to other witnesses and objected to generally, the court naturally inferred that the ground'of objection to the question itself, was what had been specified at first, and that inference was, no doubt, correct.
The same reason that made the exclusion of the testimony offered in the Story case above cited, no error, applies to the admission of it here.
On the whole case there is no error and the judgment is affirmed.
Judgment affirmed.