Opinion
Gen. No. 9,732. (Abstract of Decision.)
Opinion filed January 27, 1942
NEGLIGENCE, § 116 — instruction defective where it does not conform to pleadings. Where, in an action to recover damages for the death of a party killed at a railroad crossing, the complaint charged a violation of a common-law duty, an instruction on the statutory duty to ring bell or sound whistle was fatally defective as such an instruction is applicable only when a violation of a statutory duty is charged.
See Callaghan's Illinois Digest, same topic and section number.
Appeal from Circuit Court of Rock Island county; Hon. LEONARD E. TELLEEN, presiding.
Reversed and cause remanded. Heard in this court at October term, 1941.
Stafford Schoede and Edward C. Schoede, for appellants;
Milton V. Thompson, of counsel;
Huber Reidy, for appellee;
Isador I. Katz, of counsel.
"Not to be published in full." Opinion filed January 27, 1942.