Legal Opinion

City of Chicago v. O'Malley

Appellate Court of Illinois

Decided June 10, 1901Published

Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1900. Statement by the Court. — This is an action by Thomas O’Malley, an infant, aged at the time six years and five months, by his next friend, to recover for injuries received October 24, 1893, at the Erie street bridge of the city of Chicago.

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Trespass on the Case, for personal injuries. Appeal from the Circuit Court of Cook County; the Hon. Richard W. Clifford, Judge, presiding. Heard in this court at the October term, 1900. Statement by the Court. — This is an action by Thomas O’Malley, an infant, aged at the time six years and five months, by his next friend, to recover for injuries received October 24, 1893, at the Erie street bridge of the city of Chicago. A trial before the court and jury resulted in a verdict in his favor December 8, 1899, of $8,000, from which there was a remittitur of $3,000, and a judgment for the…

1Opinion of the CourtJustice Windes

It is claimed that the judgment should be reversed, because there is a material variance between the declaration and the proof, and that even if the declaration corresponded with the proof made, no liability of appellant is shown.

In so far as it is claimed there was a variance between the proof and declaration, the contention can not now be urged. It fails to appear that the alleged variance was, in any way, called to the attention of the trial court, and according to numerous decisions in this and thé Supreme Court, it is too late to raise the question for the first time in a court of…

2Cases cited13 opinions

  1. Pullman Palace Car Co. v. LaackIllinois Supreme Court · 1892
  2. North Chicago Street Railroad v. DudgeonIllinois Supreme Court · 1900
  3. Swift & Co. v. RutkowskiIllinois Supreme Court · 1899
  4. Illinois Central Railroad v. AndersonIllinois Supreme Court · 1900
  5. American Express Co. v. RisleyIllinois Supreme Court · 1899

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