Missouri, etc., Ry. Co. v. Garrison one thing, and recover on the theory that he meant another. He may not have the benefit of a hidden meaning which he has refused to reveal upon invitation. It was not error for the district court to overrule the motion to make definite and certain so far as related to the matter of negligence through permitting the accumulation of inflammable material along or near the right of way, for the reason that the petition, as it stood, could by no possible construction be held to refer to that feature of the case, and would not support evidence in that line. But we hold that, in view of the subsequent proceedings, it was material error to overrule the motion on the other ground-that already discussed. The judgment is reversed and the, cause remanded for further proceedings in accordance with the views herein expressed. SMITH, GREENE, POLLOCK, and BURCH, JJ., concurring. JOHNSTON, C. J. (dissenting). Under the statute, all that the plaintiff was required to allege or prove, in order to recover, was that the fire was caused by the operation of the defendant's railroad, and the amount of his damages. Gen. St. 1901, 5923. A presumption of negligence arises from the fact that the fire was set out by the company in the operation of its road, and therefore neither averment nor proof of negligence was essential. The petition measured up to the requirement of the statute, as it alleged in detail that the fire was set out by the defendant in the careless and negligent operation of its railroad. It was not necessary to state that the fire escaped from the engine, nor that the company was negligent in setting out the fire, but the fact that more was pleaded than was necessary is not a good ground for overthrowing a judgment. The fullness of the pleading may limit a plaintiff in his proof, and also as to the negligence for which a recovery may be had, but the fact that he pleaded too much does not require that he plead still more. This case, as will be observed, does not turn on a variance between the pleading and the proof, nor because a recovery was allowed on one kind of negligence, when another was pleaded, but because the petition was more specific than the law requires. The fact that it was more specific was a benefit to the defendant, and this benefit ought not to be used as a club against its opponent. Under the rulings in this and other states, a redundancy in allegations in fire cases is not a fatal defect. Railway Co. v. Tubbs, 47 Kan. 630, 28 Pac. 612; Railway Co. v. Snaveley, 47 Kan. 637, 28 Pac. 615; Rose v. Chicago & Northwestern Ry. Co., 72 Iowa, 625, 34 N. W. 450; Engle v. Railway Co., 77 Iowa, 661, 37 N. W. 6, 42 N. W. 512; Campbell v. Railway Co., 121 Mo. 340, 25 S. W. 936, 25 L. R. A. 175, 42 Am. St. Rep. 530. The company was not, and, of course, could not have been, hampered or embarrassed by the fact that the petition was more specific than was nec Northern Pac. Ry. Co. v. Spike essary. It had full opportunity to meet the charge of negligence which was alleged, and it appears to have introduced a great deal of testimony tending to show that the engine was not defective, and that the employees of the company were not negligent in operating it. The negligence which caused the injury was found to be in the engine from which the fire escaped, and not on account of combustible material on the right of way. It appears, too, that the fire was communicated from the engine directly to the plaintiff's premises, and hence the scope of the inquiry was limited to the condition and use of the engine. The company offered to allow judgment to be taken against it for a certain amount, and I find nothing in the record which tends to show that it suffered any prejudice by the lack of a detailed statement of the negligence. It was not necessary for the plaintiff to prove negligence in general or in detail, and it is never necessary for a party to plead that which he need not prove. CUNNINGHAM, J., concurs in the dissent. NORTHERN PAC. RY. Co. v. SPIKE. (Circuit Court of Appeals, Eighth Circuit, February 19, 1903.) [120 Fed. Rep. 44.] Railroads Crossing Accident-Contributory Negligence. Plaintiff's intestate was riding home alone after dark, in a lumber wagon, when he was killed by a collisiou at a crossing. The highway and railroad ran parallel for some distance, till within 75 feet of the crossing the highway turned down a declivity to the crossing. At the time of the accident the train was 12 hours late, and running at a speed of 30 miles an hour, in the same direction deceased was driving. It gave no signals upon approaching the crossing, and the wind was in the opposite direction. The view of the track was more or less obstructed from the highway, and from the turn to the crossing neither the train nor its headlight could be seen until one was on or near the track. Defendant attempted to show by photographs taken some time after the accident, and in the daytime, that at various points before reaching the crossing decedent could have seen the headlight on the locomotive, had he looked, but no photograph was shown of any point between the turu and the crossing: held, that decedent was not shown to have been guilty of contributory negligence, as a matter of law. Same-Crossing-Statutory Signals. Where the view of a railroad track, running almost parallel with a highway, is obstructed by trees, fences, etc., so that a train can be seen only at intervals, and at a distance of 75 feet from a crossing such view is entirely cut off by an embankment till the traveler is on or near the track, it is imperatively necessary for the safety of travelers that trains give the statutory signals on approaching the crossing. Same-Contributory Negligence-Presumption.* The presumption that a traveler killed at a railroad crossing was at the time in the exercise of due care is sufficient to warrant a recovery in the absence of countervailing testimony. *See note appended to Northern Pac. Ry. Co. v. Spike (C. C. A.), 121 Fed. Rep. 44. Northern Pac. Ry. Co. v. Spike In Error to the Circuit Court of the United States for the District of Minnesota. L. T. Chamberlain (C. W. Bunn, on the brief), for plaintiff in error. Halvor Steenerson (Charles Loring, on the brief), for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. CALDWELL, Circuit Judge. On the 31st day of December, 1900, about 8:25 p. m., William I. Spike, a man of intelligence, 31 years old, in the full possession of all his senses, was traveling along the public highway, with which he was familiar, leading from Detroit, Minn., to his home; driving a span of mules, hitched to an ordinary lumber wagon. For some distance the highway runs east and west, and nearly parallel to the railroad, but at varying distances from it, until the highway approaches within about 75 feet of the point at which it crosses the railroad track, when it turns south, and, going down a declivity, crosses the railroad at grade. At this crossing a locomotive pulling one of defendant's passenger trains came in collision with the team driven by Mr. Spike, killing him instantly, and this action is brought by his administratrix, under the Minnesota statute, to recover damages for his death, upon the ground that the accident resulted solely from the culpable negligence of the defendant railway company. In this court it is not contended that the evidence did not warrant the jury's finding that the railway company was guilty of negligence. The contention is that the deceased was guilty of contributory negligence and that this court should so declare, as matter of law. The burden is on the defendant to establish this defense of contributory negligence by clear and satisfactory testimony. A brief summary of some of the leading facts will show very clearly that it has not discharged this burden. The accident occurred after night. The deceased and the train were going in the same general direction until the highway turned sharp to the south to cross the railroad track. The train was running at the speed of 30 miles an hour. As it approached the highway it gave no signal by whistle or bell, as required by the law of the state. The wind was blowing in the opposite direction to that which the deceased and the train were moving. The train was 12 hours behind its schedule time. The country along and over which the highway ran was somewhat broken, and owing to this fact, and the presence of brush, trees, telegraph poles, fences, and the like, the train or its headlight could only have been seen at intervals by one looking back for that purpose; and, owing to a railroad cut and the topography of the country, neither the train nor its headlight could be seen from the point where the Northern Pac. Ry. Co. v. Spike highway turned to the south to cross the railroad track until one was on or near the track. The defendant's evidence consists chiefly of photographs taken under the supervision of its claim agent, which, it is claimed, show that at various points before the deceased reached the crossing he might have seen the headlight of the approaching train if he had turned and looked. But it is obvious enough that these photographs were taken only at the points from which the train could be seen, and not at any of the points along the road from which the train could not be seen, and particularly was no photograph taken from the point in the highway where it descends to and crosses the railroad track. The photographs were taken some time after the accident, and in daylight, and from points of view chosen by the defendant. Having been taken under such widely varying conditions from those surrounding the deceased at the time of the accident, they fall far short of furnishing the clear and satisfactory evidence essential to establish the defense of contributory negligence. Courts have had frequent occasion to consider this character of evidence, and comment on its inconclusive and unsatisfactory character, in this class of cases. Miller v. Truesdale, 56 Minn. 274, 57 N. W. 661; Hutchinson v. St. Paul Ry. Co., 32 Minn. 401, 21 N. W. 212, 19 Am. & Eng. R. Cas. 280; Kellogg v. N. Y. C. & H. R. R. Co., 79 N. Y. 77; Massoth v. Delaware & Hudson Canal Co., 64 N. Y. 524. The rules governing the rights and duties of travelers and railway trains at grade crossings are clearly defined by the Supreme Court of the United States in Continental Improvement Co. v. Stead, 95 U. S. 161, 24 L. Ed. 403, and Texas & Pacific Ry. Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186, 4 Am. & Eng. R. Cas., N. S., 559, and by this court in St. Louis & S. F. Ry. Co. v. Barker, 23 C. C. A. 475, 77 Fed. 810. In the first of these cases the Supreme Court, speaking by Mr. Justice Bradley, says: * * * "The train has the preference and right of way. But it is bound to give due warning of its approach, so that the wagon may stop and allow it to pass, and to use every exertion to stop if the wagon is inevitably in the way. Such warning must be reasonable and timely. On the other hand, those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution, for their lives are in imminent danger if collision. happen; and hence it will not be presumed, without evidence, that they do not exercise proper care in a particular case. And it is further said in the same case: "Conceding that the railway train has the right of precedence of crossing, the parties are still on equal terms as to the exercise of care and diligence in regard to their relative duties. The right of precedence referred to does not impose Northern Pac. Ry. Co. v. Spike upon the wagon the whole duty of avoiding a collision. It is accompanied with and conditioned upon the duty of the train to give due and timely warning of approach. The duty of the wagon to yield precedence is based upon this condition." And in Texas & Pacific Ry. Co. v. Gentry, supra, the court, speaking by Mr. Justice Harlan, says: "Whether he [the deceased] did or did not stop and look and listen for approaching trains the jury could not tell from the evidence. The presumption is that he did; and, if the court had given the special instructions asked, it would have been necessary to accompany it with the statement that there was no evidence upon the point, and that the law presumed that the deceased did look and listen for coming trains before crossing the track." No one was with the deceased or witnessed his movements, and the presumption prevails that he exercised ordinary care in approaching this crossing, and that he would not have been killed but for the culpable negligence of the defendant in neglecting to give the required timely warning of the train's approach. The condition prevailing at this crossing at the time of the accident were such as to make it imperatively necessary for the safety of travelers for the railway train to give the statutory signals of its approach. The rule is well settled that where the accident results in instant death, as it did in this case, "the law, out of regard to the instinct of self-preservation, presumes the deceased was at the time in the exercise of due care, and this presumption is not overthrown by the mere fact of injury. The burden rests upon the defendant to rebut this presuinption." Flynn v. Railroad Co., 78 Mo. 195, 212, 47 Am. Rep. 99. The presumption arising from this natural instinct of selfpreservation stands in the place of positive evidence, and is sufficient to warrant a recovery, in the absence of countervailing testimony. Johnson v. Railroad Co., 20 N. Y. 65, 69, 75 Am. Dec. 375; Oldfield v. N. Y. & Harlem R. Co., 14 N. Y. 310; Adams v. Iron Cliffs Co. (Mich.) 44 N. W. 270, 18 Am. St. Rep. 441; Railway Co. v. State, 29 Md. 420. 438, 96 Am. Rep. 545; Railroad Co. v. Nowicki, 46 Ill. App. 566; The City of Naples, 32 U. S. App. 613, 16 C. C. A. 421, 69 Fed. 794; Allen v. Willard, 57 Pa. 374; Schum v. Railroad Co., 107 Pa. 8, 52 Am. Rep. 468; Cox v. R. Co. (N. C.) 31 S. E. 848, 12 Am. & Eng. R. Cas., N. S., 390; Cameron v. Railway Co. (N. D.) 77 N. W. 1016. Nor is this presumption applied only when no one witnesses the accident. It has its application in all cases, and may be strong enough to overcome the testimony of an eyewitness. In the case of McGhee v. Kennedy's Adm'r, 66 Fed. 502, 13 C. C. A. 608, 31 U. S. App. 366, a witness testified that the deceased saw the train, and attempted to get over before it, and whipped up his horses to do so. The Circuit Court of Appeals states that, "if that were true, it would have been the duty of the court below to charge the |