Mr. Justice Farmer
delivered the opinion of the court:
John Flanley, while in the /act of boarding a street car of the Chicago City Railway Company, was thrown to the ground and so injured that he died. His administrator brought this action against the street railway company for damages, alleging that the death was caused by the negligence of the defendant. A recovery was had by plaintiff in the superior court of Cook county, and the judgment of that court was affirmed by the Appellate Court for the First District. The record is brought to this court for review by a writ of certiorari.
The injury which resulted in the death of John' Flanley occurred at the corner of Forty-seventh street and Center avenue, in the city of Chicago. Forty-seventh street runs east and west and Center avenue intersects it from the south. There is a double-track street railway on Center avenue, which curves east at its intersection with Forty-seventh street and runs thence east on said Forty-seventh street. The sidewalk at the south-east corner of the intersection of said streets extends to the curb on both streets, and at the corner, just inside the curb, was a telegraph or telephone pole. The side of a car coming north on Center avenue and turning east on Forty-seventh street would come within a few inches of this pole. The car which caused Flanley’s death came from the south on Center avenue and stopped before turning into Forty-seventh street, to discharge and receive passengers. Its front platform was about at the south cross-walk of Forty-seventh street. As Flanley attempted to get on the front platform the car was started, causing him to lose his balance, and as it went around the corner he was brought in contact with the telegraph pole and knocked off, falling under the car and receiving such injuries as to cause his death.
The accident occurred on August 30, 1908, suit was begun the following November, and a declaration of two counts was filed in January, 1909. More than a year, after the intestate’s death two additional counts were filed, to which the defendant pleaded the limitation of one year. Demurrers were sustained to these pleas and the cause was tried on all four counts and the general issue. It is claimed that the court erred in sustaining the demurrer to the pleas, in refusing an instruction and in giving an instruction.
The first count alleged that while the car was standing still, and the deceased, in the exercise of due care, was in the act of boarding it, the defendant, by its servants, wrongfully and negligently started, the car forward suddenly, violently and without warning, “and as a direct result, and in consequence thereof, the deceased was thereby then and there thrown and fell from said car to and upon the track,” was run over, and thereby sustained such injuries that he died. The second count is the same, except that it states that the car, at the time, was running very slowly, and the defendant wrongfully and negligently, suddenly, violently and without warning increased the speed, so that the deceased was thrown off. The additional counts were identical with the original counts, except that after the allegation of the sudden starting or increasing of the speed of the car without warning, these words occur: “And as a direct result, and in consequence thereof, the deceased was thereby then and there brought, into violent contact with a telegraph or telephone pole which was standing alongside of said railway, and he was thereby thrown and fell from said car,” etc. The only difference between the first count and the first additional count, and between the second count and the second additional count, is the insertion of the words above shown in italics.
It is insisted, by plaintiff in error that each of the additional counts states a new and different cause of action from that stated in the original counts, and that as to said additional counts the Statute of Limitations was a good plea. We do not agree with this contention. The negligence charged in all four of the counts is the same, namely, the wrongful, negligent, sudden and violent starting of the car without warning to the deceased, as a result and consequence of which he was thrown or fell upon the track. No negligence is predicated in the additional counts upon the position of the pole with reference to the tracks 'of the street railway. There is no averment of any negligent or wrongful conduct upon the part of the plaintiff in error in operating its railroad in such close proximity to the pole. The additional counts alleged that as a result of the same negligence charged in the two original counts the deceased ■ was ■ brought in contact with the pole and thrown to the ground. The additional counts were but an amplification of the original counts in stating how the sudden and violent starting of the car operated to throw the deceased to the ground. No new or other negligent act was charged in said additional counts, and the court did not err in sustaining the demurrer to the plea of the Statute of Limitations to said additional counts.
Plaintiff in error asked the following instruction, which the court refused to give:
“The court instructs you that the plaintiff cannot recover in this case on the ground, merely and only, because of the proximity of the telegraph or telephone to the car track. That fact is not alleged as a ground of recovery in this .case.”
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Mr. Justice Farmer
delivered the opinion of the court:
John Flanley, while in the /act of boarding a street car of the Chicago City Railway Company, was thrown to the ground and so injured that he died. His administrator brought this action against the street railway company for damages, alleging that the death was caused by the negligence of the defendant. A recovery was had by plaintiff in the superior court of Cook county, and the judgment of that court was affirmed by the Appellate Court for the First District. The record is brought to this court for review by a writ of certiorari.
The injury which resulted in the death of John' Flanley occurred at the corner of Forty-seventh street and Center avenue, in the city of Chicago. Forty-seventh street runs east and west and Center avenue intersects it from the south. There is a double-track street railway on Center avenue, which curves east at its intersection with Forty-seventh street and runs thence east on said Forty-seventh street. The sidewalk at the south-east corner of the intersection of said streets extends to the curb on both streets, and at the corner, just inside the curb, was a telegraph or telephone pole. The side of a car coming north on Center avenue and turning east on Forty-seventh street would come within a few inches of this pole. The car which caused Flanley’s death came from the south on Center avenue and stopped before turning into Forty-seventh street, to discharge and receive passengers. Its front platform was about at the south cross-walk of Forty-seventh street. As Flanley attempted to get on the front platform the car was started, causing him to lose his balance, and as it went around the corner he was brought in contact with the telegraph pole and knocked off, falling under the car and receiving such injuries as to cause his death.
The accident occurred on August 30, 1908, suit was begun the following November, and a declaration of two counts was filed in January, 1909. More than a year, after the intestate’s death two additional counts were filed, to which the defendant pleaded the limitation of one year. Demurrers were sustained to these pleas and the cause was tried on all four counts and the general issue. It is claimed that the court erred in sustaining the demurrer to the pleas, in refusing an instruction and in giving an instruction.
The first count alleged that while the car was standing still, and the deceased, in the exercise of due care, was in the act of boarding it, the defendant, by its servants, wrongfully and negligently started, the car forward suddenly, violently and without warning, “and as a direct result, and in consequence thereof, the deceased was thereby then and there thrown and fell from said car to and upon the track,” was run over, and thereby sustained such injuries that he died. The second count is the same, except that it states that the car, at the time, was running very slowly, and the defendant wrongfully and negligently, suddenly, violently and without warning increased the speed, so that the deceased was thrown off. The additional counts were identical with the original counts, except that after the allegation of the sudden starting or increasing of the speed of the car without warning, these words occur: “And as a direct result, and in consequence thereof, the deceased was thereby then and there brought, into violent contact with a telegraph or telephone pole which was standing alongside of said railway, and he was thereby thrown and fell from said car,” etc. The only difference between the first count and the first additional count, and between the second count and the second additional count, is the insertion of the words above shown in italics.
It is insisted, by plaintiff in error that each of the additional counts states a new and different cause of action from that stated in the original counts, and that as to said additional counts the Statute of Limitations was a good plea. We do not agree with this contention. The negligence charged in all four of the counts is the same, namely, the wrongful, negligent, sudden and violent starting of the car without warning to the deceased, as a result and consequence of which he was thrown or fell upon the track. No negligence is predicated in the additional counts upon the position of the pole with reference to the tracks 'of the street railway. There is no averment of any negligent or wrongful conduct upon the part of the plaintiff in error in operating its railroad in such close proximity to the pole. The additional counts alleged that as a result of the same negligence charged in the two original counts the deceased ■ was ■ brought in contact with the pole and thrown to the ground. The additional counts were but an amplification of the original counts in stating how the sudden and violent starting of the car operated to throw the deceased to the ground. No new or other negligent act was charged in said additional counts, and the court did not err in sustaining the demurrer to the plea of the Statute of Limitations to said additional counts.
Plaintiff in error asked the following instruction, which the court refused to give:
“The court instructs you that the plaintiff cannot recover in this case on the ground, merely and only, because of the proximity of the telegraph or telephone to the car track. That fact is not alleged as a ground of recovery in this .case.”
The proximity of the pole to the car track was not alleged as a ground of negligence, and there could be no recovery, “merely and only,” because of- the proximity of the pole to the track, but we do not see how the refusal to give the instruction could have prejudiced the plaintiff in error. We must assume the jurors possessed the qualifications prescribed by the statute, and if they did, they knew the only negligence charged and relied upon was the sudden and violent starting or increasing the speed of the car when the deceased was attempting to board it, whereby he lost his balance, was brought in contact with the pole and thrown to the ground. Nothing in the declaration or in any instruction given for the defendant in error tended to lead the jury to understand or believe he was charging any liability of plaintiff in error on account of the location of the pole. By one instruction given by plaintiff in error the jury were told that even if they believed, from the evidence, “the servants of defendant in charge of> the car were guilty of the particular negligence charged,” but that deceased was himself guilty of contributory negligence, there- could be no recovery. Another instruction told the jury that if deceased received the alleged injury, “not from any cause stated in the declaration but from any other cause whatever,” there could be no recovery. Another instruction told the jury that if they believed, from the evidence, “defendant was not guilty of the particular negligence charged” there could be no recovery. The declaration having alleged negligence only in the sudden and violent starting of the car without warning, and the instructions having repeatedly told the jury that in determining the question of liability of plaintiff in error they were to be confined to the proof upon the negligence charged in the' declaration, we would be unwarranted in assuming the jury might have found plaintiff in error guilty on some ground of negligence not alleged in the declaration because the court did not give the instruction above set out. While it would be reversible error to instruct a jury that plaintiff might recover upon proof of an act of negligence not alleged in the declaration, it does not follow that it is reversible error to refuse to instruct a jury that the're can be no recovery upon a ground of negligence not charged in the declaration.
The jury were fully, and even elaborately, instructed on behalf of plaintiff in error upon the law of the case, and no error was committed by the court in giving instructions on behalf of defendant in error. 0
The judgment of the Appellate Court is affirmed.
Judgment affirmed.