Lake Shore & Michigan Southern Railway Co. v. Beam

McAllister, J. We have decided to reverse the judgment in this case for the following reasons: First, there was no evidence tending to support the second count of appellee’s declaration ; and in describing the tort and the means by which it was effected the pleader averred that while appellee’s horse was facing the locomotive engine and cars, and then and there for the first time, when appellee’s horse was within six or eight feet of said locomotive engine, the servants of appellant did blow the whistle and ring the bell of said locomotive engine, and frighten appellee’s horse by its sudden approach, its sudden blowing of said whistle and the ringing said bellas aforesaid, thereby, etc. The proof wholly fails to show that the horse was within any such specified distance of the locomotive; but does show that he was much farther away when he became frightened. It was not only needless, but indiscreet in the pleader to descend to such minuteness and particularity of description, for by the rules of law, indispensable to the true purposes and objects of good pleading, the appellee would be bound to prove the statement substantially as made. This she failed to do. The rule governing in such cases, is concisely stated thus: “But if the plaintiff, though needlessly, describe the tort and the means adopted in effecting it, with minuteness ' and particularity, and the proof substantially vary from the statements there will be a fatal variance which will occasion a nonsuit.” 1 Chit. on Pl. p. 392. Secondly, the instruction given by the court to the jury, on 1 behalf of appellee, was erroneous in three particulars: 1. It professed to comprehend a statement, hypothetically, of all the facts necessary to a recovery, but ignored, altogether, the fact testified to by appellee, that she was familiar with the . crossing, had been over it but a short time previously and" knew its situation respecting obstructions to the view from freight trains standing there. That fact was material upon the question whether appellee exercised ordinary care and diligence to avert the injury. 2. Besides, the instruction improperly assumes as a fact that appellee charged those who were riding with her at the time, with the duty of watching for any coming train. 3. It improperly assumes that tlie failure of duty on the part of the flagman to give appellee a signal of the approach of the train was to be considered as an element of appellee’s cause of action. Such matter not having been stated in the declaration as a part of the gravamen of the action, it could not properly be considered as forming any basis for a recovery in this case. These points we regard as fully supported by the authorities cited by appellant’s counsel. The judgment of the court below will be reversed and the cause remanded. Reversed and remanded.