Casey v. Knickerbocker Ice Co., 185 Ill. App. 339 (1914)

March 9, 1914 · Illinois Appellate Court · Gen. No. 18,900

185 Ill. App. 339

John D. Casey, Administrator, Appellee, v. Knickerbocker Ice Company, Appellant.

Gen. No. 18,900.

(Not to be reported in full.)

Abstract of the Decision.

1. Limitation of actions, § 69 ^* —when amendment does not state a new cause of action. -In an action for the wrongful death of a fourteen-months-old child, an amendment changing the averment that the child was in the exercise of due care for her safety, to an averment that the parents were in the exercise of such care, does not state a new cause of action so as to be barred by the statute of limitations.

2. Appeal and error, § 369 ^* -—when change of theory not permitted on appeal. In an action for the wrongful death of a fourteen-months-old child where the case was tried upon the theory that the question of contributory negligence involved solely the conduct of one or other or both of the parents, defendant cannot, ior the first time, contend on appeal that plaintiff was not entitled to recover because of the absence of an averment that an older sister of the child, in whose care it was at the time of the accident, exercised due care for the safety of the child while in her custody.

Appeal from the Superior Court of Cook county; the Hon. William E. Dever, Judge, presiding.

Heard in this court at the October term, 1912.

Affirmed.

Opinion filed March 9, 1914.

Statement of the Case.

Action by John D. Casey, administrator of the estate of Wilmer Eberl, deceased, against Knickerbocker Ice Company to recover for the'wrongful death of said Wilmer Eberl, a fourteen-months-old child, due to the negligence of a driver in defendant’s employ in running over the child while playing in a public street. From a judgment for plaintiff for one thousand seven hundred dollars, defendant appeals.

Quin O’Brien and. O. A. Arnston, for appellant; John P. McKinley, of counsel.

Elm:er & Cohen, for appellee.

* See Illinois Notes Digest, Vola. XI to XV, same topic and section number*

* See Illinois Notes Digest, Vols. XI to XV, same topic and section number.

Mr. Justice McSurely

delivered the opinion of the court.

3. Roads and bbidges, § 232 ^* —when owner of vehicle liable for hilling child playing in street. Where a fourteen-months-old child, in the custody of a nine-year-old sister, while playing with other children about a sand pile in a public street was run over and killed by a team driven at a fast trot on the wrong side of the street, the driver of which paid no heed to warning cries of persons in the street, and knew nothing of the accident until his horses were stopped by a pedestrian about seventy-five feet from the scene of the accident, a verdict for plaintiff was held to be sustained by the evidence.