This case was in this court before, and is reported in the 15th Ill. App. 582. The facts of the case were very fully stated in the opinion then rendered, and it is not deemed necessary to re-state them here.
When the case was re-docketed in the court below, plaintiff obtained leave to file an additional count to the declaration. To this additional count defendant filed a plea of the statute of limitations, which plea was demurred to by plaintiff, and the demurrer was overruled by the court, and judgment entered for defendant on said plea. A- trial was had upon the other counts of the declaration, and at the conclusion of the plaintiff’s evidence, the judge instructed the jury to find a verdict for the defendant. We agree with the counsel for appellant that the additional count filed was nothing more than a re-statement of plaintiff’s cause of action, and was not in any sense the statement of a new cause of action.
*24It follows that the statute of limitations was not a good plea to said additional count, and that the court erred in overruling the demurrer to it. But that error can not avail appellant, because he was not injured by it.
It is not claimed that all the evidence which appellant had was not introduced. Therefore, if his evidence does not make a case which entitles him to a verdict, an error depriving him of an appropriate pleading does not injure him.
The former judgment of this court left no ground on which the plaintiff could recover, unless he should furnish proof that the accident was the result of negligence on the part of defendant so gross as to be wanton and reckless misconduct, equivalent in legal contemplation to a willful tort.
We are of opinion that plaintiff wholly failed to introduce any evidence from which the jury would be at liberty to find any such degree of negligence. The facts seem to us to be the same in all respects as they were when the case was before considered in this court, and the law as then stated must control now.
The court below properly instructed the jury to find for the defendant, and the judgment must be affirmed.
Judgment affirmed.