Appeal from the Circuit Court of Cook County; the Hon. HERBERT
C. PASCHEN, Judge, presiding. Affirmed.
MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 25, 1964.
By this appeal plaintiffs seek to reverse the judgment of the trial court dismissing plaintiffs' Third Amended Complaint and the Amendment thereto.
Chris Lee Rollins *fn1 brought an action against Chicago Great Western Railway Co., the Chicago River & Indiana Railroad Co. and the General American Transportation Corporation alleging that Rollins, while an employee of Swift & Company, was injured while unloading tallow from a tank car which had been leased to his employer by General and shipped from St. Paul. Great Western was the originating carrier, Chicago River the delivering carrier, with Swift as both consignor and consignee.
All defendants filed motions to dismiss which were considered at the same time. Among other grounds, Chicago River urged that plaintiff was, as a matter of law, contributorily negligent and the other defendants contended that the Complaint did not state a cause of action. There was no statement in any of the pleadings that plaintiff was in the exercise of due care.
We would not sustain a dismissal solely because plaintiffs did not affirmatively state that they were in the exercise of due care. All the facts must be carefully examined to determine whether, if taken as true, they disclose that, as a matter of law, the plaintiff was in the exercise of ordinary care and a cause of action asserted.
In a much quoted case, Walters v. City of Ottawa, 240 Ill. 259, at page 266, 88 N.E. 651, the court held:
"A declaration in an action to recover for injuries received through negligence that does not aver due care on the part of the plaintiff when he was injured, and does not contain any averment in regard to his conduct or the circumstances surrounding him from which due care on his part may be reasonably inferred, does not state a cause of action. . . ."
In the case of Church v. Adler, 350 Ill. App. 471, at page 479, 113 N.E.2d 327, it was stated:
"Liberality of construction and the rule of reasonable information do not overcome the requirement that sufficient facts be alleged to state a cause of action. Moulopoulos v. Northern Trust Co., 384 Ill. 41, 50 N.E.2d 737. . . ."
Plaintiff insists, however, that General and Chicago River did not specifically raise the defect in the Complaint as to due care or contributory negligence in the trial court by their objection that the Complaint did not state a cause of action.
In Lasko v. Meier, 394 Ill. 71, at page 75, 67 N.E.2d 162, it was held that: "If, with all intendments in its favor, a complaint wholly or absolutely fails to state any cause of action at all, objection can be made to it for the first time on appeal."
Also, in Merriam v. McConnell, 31 Ill. App.2d 241, it was stated at page 244, 175 N.E.2d 293:
"Defendants, as appellees, may sustain the decree of dismissal `by any argument and upon any basis appearing in the record which shows the decree is right, even if (they) had not previously advanced such argument.' Becker v. Billings, 304 Ill. 190, 205, 136 N.E. 581 (1922); 222 East Chestnut St. Corp. v. Murphy, 325 Ill. App. 392, 399-400, 60 N.E.2d 450 (1954). Defendants are entitled, therefore, to argue on appeal the vital question whether the ...