the risk. The extent of the danger could , plant, exercising ordinary care, defendant, a

, not be ascertained from looking at the open

railroad company, recklessly, negligently, and ing. If, as the evidence tends to prove, there

without giving plaintiff any warning, shoved

other cars against the car on which he was was already a break in the strap, that could standing, thereby knocking him down and inonly be seen by taking the strap off and ex- juring him, is insufficient for failing to show amining it from the inside, and if that break

that defendant knew, or was bound to know,

that plaintiff was on the car, or that he was existed the danger resulted therefrom. Ap

likely to be injured by the car on wliich he was pellant and appellee both knew of the out- at work being moved by the cars handled luy ward defect. Neither had actual knowledge defendant, as the only ground on which defendof the hidden danger. Appellant had the

ant was liable for negligence was that it

owed plaintiff a duty not to run its cars against right, and the evidence tends to show that

the car on whicli he was at work, without givit was its duty, to make an examination to ing him warning in time for him to reach a determine whether such a danger existed, place of safety, and that it neglected to perAppellee had no such right, and, while he

form such duty.

3. LIMITATION OF ACTIONS PLEADING had knowledge of the defect, it does not ap

AMENDMENT-NEW CAUSE OF ACTION. pear that he had knowledge of the danger,

The original declaration, in an action for and under such circumstances it cannot be negligence causing personal injury received said that he assumed the risk. Consolidated

July, 1901, was filed in February, 1902. It

stated no cause of action. In November, 1903, Coal Co. v. Haenni, 146 Ill. 614, 35 N. E.

additional counts were by amendments added to 162; Illinois Steel Co. v. Schymanowski, the declaration. Held, that a plea of limitations 162 Ill. 447, 44 N. E. 876; Union Show Case filed to the additional counts was not vulnerable Co. v. Blindauer, 175 Ill. 325, 51 N. E. 709;

to a 'demurrer. Chicago & Eastern Illinois Railroad Co. v.

[Ed. Note.-For cases in point, see vol. 33,

Cent. Dig. Limitation of Actions, $$ 543-547.] Knapp, 176 Ill. 127, 52 N. E. 927; Swift & Co. v. O'Neill, 197 Ill. 337, 58 N. E. 416;

4. NEGLIGENCE-DECLARATION-SUFFICIENCY.

A declaration, in an action for negligence Chicago & Eastern Illinois Railroad Co. v. resulting in personal injury, which alleges that Heerey, 203 Ill. 492, 68 N. E. 74.

cars were recklessly and negligently shoved The motion for a peremptory instruction

against a car on which plaintiff was at work,

does not show that defendant owed plaintiff a was properly denied. In the trial of the

duty to warn him of the approach of the cars cause counsel for appellee, after many un- in time for him to reach a place of safety, and successful efforts to induce a witness to give that defendant neglected to perform the daty, a direct answer to a certain question on

for one may be guilty of a reckless act, and not

be liable for actionable negligence. cross-examination, made an improper re

5. LIMITATION OF ACTIONS-PLEADING. mark, which was objected to and immediate

The original declaration, in an action for ly withdrawn. We do not think it was of a negligence resulting in personal injury, stated character to warrant a reversal of the judg

no cause of action. Additional counts stating ment.

à cause of action were by amendment added to

the declaration. A plea of limitations to the Complaint is also made of the action of the amended counts averred that they stated "ancourt in permitting certain impeaching ques- other and different cause of action.” Held, tions to be propounded to appellant's witness

that the averment in the plea was equivalent to

the statement that the additional counts stated Smith, on cross-examination. We have con

a new and different cause of action. sidered this assignment of error in connec

6. SAME-DEFECT IN DECLARATION-AIDER JY tion with the testimony of this witness, and VERDICT. find that no harm was done appellant by the

Where a declaration omits to allege any court's ruling.

substantial fact which is essential to a right of

action, and which is not implied in or inferable The judgment of the Branch Appellate from the findings of those which are alleged, a Court will be affirmed.

verdict for plaintiff does not cure the defect. Judgment affirmed.

[Ed. Note. For cases in point, see vol. 39, Cent. Dig. Pleading, 88 1451-1477.] 7. SAME.

Where, in an action for negligence result. (222 Ill. 232)

ing in a personal injury, the declaration failed McANDREWS v. CHICAGO, L. S. & E. RY. to show the existence of a duty on the part of CO.

defendant to protect plaintiff from the injury

complained of, the defect was not cured by a (Supreme Court of Illinois. June 14, 1906. verdict for plaintiff. Rehearing Denied October 10, 1906.)

Error to Appellate Court, First District. 1. NEGLIGENCE-RIGHT OF ACTION - PLEAD

Action by Michael McAndrews against the ING. In an action for negligence causing per

Chicago, Lake Shore & Eastern Railway sonal injuries, it is necessary to aver and Company. There was a judgment of the Approve the existence of a duty on the part

pellate Court reversing a judgment rendered of defendant to protect plaintiff from the injury of which he complains, a failure of de

for plaintiff, and he brings error. Affirmed. fendant to perform that duty, and an injury James C. McShane, for plaintiff in error. to plaintiff resulting therefrom. [Ed. Note.--For cases in point, see vol. 37,

Knapp, Haynie & Campbell, for defendant Cent. Dig. Negligence, $$ 174, 177, 181.]

in error. 2. SAME-DECLARATION-SUFFICIENCY. A declaration which alleges that plaintiff

HAND, J. This is an action on the case was in the employ of a third person, that while

brought by the plaintiff, against the defendunloading a car on the tracks at the employer's ant, in the superior court of Cook county, to

on which he was at work, without giving the law will redress.” And in South Bend the plaintiff timely warning. The declara- Iron Works Co. v. Larger, 11 Ind. App. 367, tion, therefore, in that regard was fatally 39 N. E. 209, it was said: “That the declaradefective. In Mackey V. Northern Milling tion was not cured by verdict where no facts Co., supra, on page 117 of 210 Ill., page 448 were alleged showing that a duty was owed of 71 N. E., it was said: “It is a well- by the defendant, although there was an alestablished rule that a declaration, in cases legation that a certain hatchway into which of this character, must state facts from the plaintiff fell was dangerous and unwhich the law raises a duty from the master protected and without warning signs, and to the servant, and, if the declaration fails that because of the 'carelessness and negliin this regard, then it is insufficient to sup- gence of the said defendant in locating and port a judgment. As stated in Ayers v. City constructing and maintaining said elevator of Chicago, 111 Ill. 406, 'the pleader must the plaintiff was injured.” It would appear to state facts from which the law will raise the be clear that the averment, therefore, that duty. And as said in Cooley on Torts (2d the defendant shoved said cars negligently Ed.) 791: 'The first requisite in establishing and recklessly, does not supply the want of negligence is to show the existence of the an averment of facts showing that the deduty which it is supposed has not been per- fendant owed to the plaintiff a duty not to formed.' And Mr. Thompson, in his work move said cars without notice to him. on Negligence (2 Thompson on Negligence, It is also urged that the pleas of the stat1244), says: 'Unless the duty results in all ute of limitations do not aver that the origicases from the stated facts, the declaration nal declaration stated no cause of action. so framed will be bad.'” And in Schueler The averments of the pleas are that the addiv. Mueller, supra (page 403 of 193 Ill., page tional counts state "another and different 1044 of 61 N. E.): "It is not sufficient in a cause of action.” That averment we think declaration to allege generally the duty of the equivalent to the statement that the additional defendant, but the pleader must state facts

counts state a "new and different cause of from which the law will raise a duty, and

action.” Clearly, if the original declaration show an omission of the duty and a resulting stated no cause of action, and the additional injury."

counts state a good cause of action, they We think the original declaration stated

state "another and different cause of action" no cause of action, and that the Appellate

from that stated in the original declaration. Court did not err in holding that the pleas

In Mackey v. Northern Milling Co., supra, on of the statute of limitations filed to the ad- page 121 of 210 Ill., page 450 of 71 N. E., ditional counts of the declaration were not it is said: “If, as we hold, the first declaravulnerable to a demurrer. It is, however, tion filed by appellant did not state any urged that a duty from the defendant to cause of action, then it must follow that, the plaintiff should be implied from the aver

if the declaration that was filed on March ment found in the original declaration that 4, 1902, did state a cause of action, it was a the cars were recklessly and negligently new or different cause of action, and, not shoved against the car upon which the plain- being within the limitation of the statute, tiff was at work. A person may be guilty of was thereby barred." It is manifest that, a negligent or reckless act and still not be if the original declaration does not state a liable for actionable negligence. Liability

.

cause of action, additional counts stating a only follows a negligent or reckless act when cause of action most certainly state another the party guilty of the act owes to the or different cause of action, viz., one which party injured some duty which is violated by has never before been stated. Were it otherthe commission of the negligent or reckless wise, the plaintiff, by his demurrer, would act. Thompson on Negligence (volume 1, admit that the cause of action stated in the § 3), says: "Where there is no legal duty to $

additional counts was stated for the first exercise care, there can be no actionable time in the additional counts, and having negligence. Therefore it is reasoned that a admitted that fact, and that the additional plaintiff who grounds his action upon the counts were not filed within two years after negligence of the defendant must show not the cause of action accrued, judgment on the only that the conduct of the defendant was demurrer would have to go for the defendnegligent, but also that it was a violation of ant. some duty which the defendant owed to him.” It is also urged that, even though it be conAnd in Bishop on Noncontract Law, par. ceded the original declaration failed to state 446, it is said: “To sustain an action for a cause of action, the defect was cured by negligence the plaintiff must have suffered a verdict. The rule is, if the declaration omits legal injury whereof he is entitled to com- to allege and substantial fact which is essenplain. Therefore, however great the defend- tial to a right of action and which is not ant's negligence, if it was committed with- implied in or inferable from the findings of out violating any duty which he owed, either those which are alleged, a verdict for the directly to the plaintiff or to the public, in plaintiff does not cure the defect. Foster v. a matter whereof he had the right to avail

St. Luke's Hospital, 191 Ill. 94, 60 N. E. 803. himself,

there is nothing which Here, one element of the plaintiff's cause of action, viz., the existence of a duty on the and on the trial in the criminal court of Cook part of the defendant to protect the plain- county Thomas Light was acquitted and the tiff from the injury of which he complains, plaintiff in error was convicted, and the propwas wholly omitted from the declaration, erty taken having been found by the jury to and the averment thus omitted cannot be exceed $15 in value, he was sentenced to the implied or inferred from the facts which penitentiary for an indeterminate period, and are alleged in the declaration. Such omission he has prosecuted a writ of error from this was therefore not cured by the verdict. court to reverse said judgment.

Finding no reversible error in this record, It appears from the evidence that the plainthe judgment of the Appellate Court will be tiff in error was a dancing master, and from affirmed.

March, 1903, to December, 1904, conducted a Judgment affirmed.

dancing academy in a building located at 3947 Michigan avenue, in the city of Chicago,

which building was to be lighted, and heated (222 Ill. 293)

by gas furnished through meters located in WOODS v. PEOPLE.

said building under and by virtue of a con(Supreme Court of Illinois. June 14, 1906.)

tract between the plaintiff in error and said 1. LARCENY-PROPERTY SUBJECT TO LARCENY

light and coke company; that at regular in-STEALING GAS.

tervals during said period the plaintiff in erAn occupant of a building lighted and heat- ror or his employés removed the meters, and, ed by gas furnished through meters located in by rubber hose connections caused the gas the building under a contract between him and a gas company, who removes the meters, and

to pass from the gas service pipes of said by rubber hose connections causes gas to pass

light and coke company in said building difrom the service pipe in the building direct rect to the gas burners in said building, where to the burners therein where it is consumed for heating and lighting purposes, without be

it was ignited and burned by the plaintiff in ing registered is guilty of larceny as defined

error for illuminating and heating purposes by Cr. Code, $ 167 (Starr & C. Ann. St. [2d without being registered; his scheme being to Ed.) c. 38, par. 305, p. 1316), defining larceny remove the meters and substitute the rubber as feloniously stealing the personal goods of another, etc., and not of the offense created by

hose connections each month immediately aftsection '117 (1 Starr & C. Ann. St. [2d Ed.]

er the meter reader had visited said premises c. 38, par. 234, p. 1288), making it an offense and read the meters, and to allow said rubber for a person to tamper with gas meters. hose connections to remain in place for about 2. SAME-INSTRUCTIONS.

20 days, or until about 10 days before the Where, on a trial for larceny of gas, it was shown that accused occupied a building

reader of meters would return to said buildlighted and heated by gas furnished through ing, when he would replace the meters, and almeters, removed the meters, and by rubber hose low them to remain in position until the meter connections caused gas to pass without being

reader had read them, when he would again registered to the burners, where it was consumed for heating and lighting purposes, and that he

remove said meters, and substitute the rubber used gas for such purposes, admitted through hose connections therefor; that some time the rubber hose, for stated periods of about

prior to the 14th day of December, 1904, he 20 days in each month from April, 1903, to

substituted for the rubber hose connections December, 1904, an instruction leaving to the jury the question whether the taking of the a system of pipes which were concealed in gas was continuous and authorizing them in the walls of the building and which connected fixing the value of the gas stolen, in case the

the gas burners within the building with the taking was continuous, to add together the various amounts taken on the different days

regular service pipes of said light and coke continuously, was not erroneous.

company which entered said building, and 3. SAME.

which concealed pipes were fitted with a stopAn instruction on a trial for the larceny cock, which, when turned, prevented the gas of gas that in fixing the value of the gas stolen

flowing through the meters and caused the the jury should be guided by the selling price of the gas to consumers in the district in which

same to flow direct to the gas burners, where the gas was abstracted, and not by the cost it was ignited and used for illuminating and value of the material from which the gas

heating purposes in said building. The lar

. was made properly stated the test for the fixing of the value of the gas stolen.

ceny of plaintiff in error was discovered by

the inspectors of the light and coke company Error to Criminal Court, Cook County ;

on the evening of December 14, 1904, at which W. M. McEwen, Judge.

time gas was passing through the concealed Isaac Woods was convicted of the crime of

pipes in the wall to the burners in the buildlarceny, and he brings error. Affirmed.

ing and being consumed in large quantities The plaintiff in error, with James Woods for illuminating and heating purposes withand Thomas Light, was indicted by the grand out being registered. The plaintiff in error

. jury of Cook county for the crime of larceny. at that time admitted gas had been passing The indictment contained three counts. The through said concealed pipes for three or four first count charged the larceny of illuminat- days prior to December 14th, and the evidence ing and natural gas from the People's Gas- shows that the plaintiff in error had used gas light & Coke Company. The second count was for lighting and heating purposes in said in substance the same as the first, and the building, admitted through the said rubber third count charged defendants with larceny hose and without the same passing through as bailees. James Woods was not arrested, the meters and being registered, for stated