negligence of the defendant in having and using insufficient and defective machinery, and the carelessness and negligence of defendant in running and managing its railroad and cars, the plaintiff was broken and mutilated, as to both his legs, to such an extent, etc.”

The above is a literal copy of the petition, as it appears in the transcript of the record. And, without indulging in any criticism upon its grammatical construction, we ask what is the cause of action stated? Would any one, from what is alleged in this petition, infer that any defect in the rail of the track contributed to the injury which plaintiff sustained? The rail of the track is mentioned but once in the petition, and then as the object upon which plaintiff was thrown, and not as the cause of his fall. It is charged that defendant was negligent, "in having and using insufficient and defective machinery," and, "in running and managing its railroad and cars," but this is to be taken as explanatory of the statement of the cause of action previously alleged, and not as a statement of distinct and independent facts. It would be defective as the statement of a cause of action without the specific preceding allegations, and is, therefore, to be taken as explanatory of those allegations. In other words, the negligence of the company "in using defective machinery," charged in the petition, must be confined to defective machinery used in running the cars which ran against the defendant. And that part of the allegation in relation to "running and managing its railroad and cars" must be confined to negligence in running the train by which plaintiff was injured, without reference to the condition of the rails or the road, of which no complaint is made. A petition by an employee stating, without any specific facts, that plaintiff was injured in consequence of the negligence of a railroad company, in using defective machinery, and in running and managing its railroad and cars, would be fatally defective; and when such general allegations are used in connection with a specific statement of a cause of action, they do not enable the plaintiff to recover for any cause of action, except that specifically stated.

In Buffington v. The Atlantic & Pac. R. R. Co., 64 Mo., 246, the court said: "The plaintiff grounds his action on an alleged defect in the construction of the engine, and he could only recover for an injury resulting from such defect. If the cause of injury was a defect in the track, and not a defect in the construction of the engine, he could not, without amending his petition, recover for a defect in the track." That case is decisive of this. See also Capital Bank v. Armstrong, 62 Mo., 59; Chapman v. Callahan, 66 Mo., 299; Carson v. Cummings, 69 Mo., 325, and C. C. & I. C. R. W. Co. v. Troesch, 68 Ill., 545. There was evidence on the part of plaintiff tending to prove that there was a broken frog at the place where plaintiff was thrown upon the track, which caused him to

fall, and the court gave in compliance with plaintiff's request the following instruction, with others, to which defendant objected; "If you believe from all the facts and circumstances in the case, that on the 5th day of October, 1872, defendant had in use in its yards, at the city of Kansas, a frog, the plate on the guard of which was broken, and that the servant of defendant, whose duty it was to repair such broken plate, either knew or by the exercise of reasonable care and diligence might have known of the defec tive condition of such broken plate, then you are bound to find for the plaintiff, provided you further believe from all the facts and circumstances in the case, that plaintiff, while in the careful discharge of his duties, in attempting to cut off a car or cars, received the injuries complained of by reason of such defect." Under the authorities above cited the court erred in giving this instruction. It authorized the jury to find a verdict for plaintiff on a cause of action not stated in his petition. The issue was not voluntarily made by defendant, but was forced upon him by the court, in admitting evidence in regard to the broken frog, and then instructing for plaintiff that the jury might find for plaintiff on account of the broken frog. Judgment reversed, and the cause remanded, all concurring.

On Rehearing.

SHERWOOD, C. J.-We discover no reason for departing from the conclusion reached in the original opinion-that plaintiff having declared upon one cause of action could not recover upon another. Our statute (2 W. S., p. 1033, § 1), it is true, provides that "No variance between the allegation in the pleading and the proof shall be deemed material, unless it has actually misled the adverse party, to his prejudice, in maintaining his action or defense upon the merits. When it shall be alleged that a party has been so misled, that fact shall be proved to the satisfaction of the court by affidavit, showing in what respect he has been misled, and thereupon the court may order the pleading to be amended upon such terms as shall be just." And it has been ruled that an affidavit of having been misled was the only statutory test of such fact. Turner v. Railroad, 51 Mo., 501, and cases cited. But that statute has reference to mere discrepancies between the issues raised by the pleadings and the evidence offered in support of such issues, and not to cases where the substance of the issue, so to speak, has no support in the testimony adduced. The correctness of this view finds ample confirmation in the subsequent provisions of the statute relating to new trials, where it is provided that, "Where the allegation of the cause of action or defence to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it shall not be deemed a case of variance, but a failure of proof." 2 W. S., p. 1058, § 1.

This section was passed upon by this court at an early day. Beck v. Ferrara, 19 Mo., 30. It was held that when the petition stated that the defendant was indebted to the plaintiff for stall No. 20, in the North Market, which was purchased by the plaintiff from a third party for defendant at his special instance and request, and the proof was that the plaintiff bought the stall for himself, and afterwards sold it to the defendant, an entire "failure of proof" had occurred and not a mere "variance."

It is obvious from these statutory provisions and their construction as just announced, that there is a wide margin of difference between a case where there exists a lack of correspondence between the allegation of the cause of action and the proof in "some particular or particulars only," and one where the allegation is "unproved" "in its entire scope and meaning." In the former case, the failure of the party complaining of any discrepancy between allegation and proof to file his statutory affidavit is fatal to his case, so far as concerns any such discrepancy. In the latter case the failure to file such an affidavit can have no such effect, for the simple reason that no such affidavit is required by the statute when there is an entire failure of proof. The distinction made by the statute between the two classes of cases is so palpable as to

render any extended discussion unnecessary. Following and

adhering to the ruling in Buffington's case, 64 Mo., 246, we must continue to hold that a recovery based upon a cause of action not stated cannot be permitted to stand. Our code, with all its comprehensive liberality, will not admit a plaintiff to sue for a horse and recover a cow; no more will it admit evidence of a defect in the track of a railroad to be the basis of such a recovery as the plaintiff seeks to have us sanction and affirm. We are willing to go the full length of the statute respecting variances, but we are certainly unwilling to go to the extreme of saying that issues may be raised by the evidence and the instructions, as well as by the legitimate method, the pleadings.

As this cause was tried in obvious disregard of the principles here announced, a reversal of the judgment must occur, and since this is so, it may be well to remark that in accordance with our former adjudications, Devitt v. Railroad, 50 Mo., 302; Porter v. H. & St. Joe. R. R., ante, p. 66; Rains v. St. L., I. M. & S. R. R., ante, p. 164, and McGowan v. St. L., I. M. & S. R. R., 61 Mo., 529, the fourth instruction for the plaintiff should have been refused; and the thirteenth instruction asked by the defendant should have been given, if the issue respecting the defective frog had been raised by the pleadings. Motion for rehearing overruled. All concur, except Norton and Napton, JJ., who dissent.

See note p. 163.

FLANNAGAN

V.

THE CHICAGO & NORTHWESTERN RAILWAY COMPANY.

(50 Wisconsin Reports, 462. November 30, 1880.)

The former decision in this case (45 Wis., 98), that a railroad company is not chargeable with negligence merely because it delays, for any length of time, to repair a broken car while it remains unused and not so situated as to create danger, nor merely because it moves such car to its shops for repairs, and does not make such repairs at the place where the car was injured-approved.

A rule of the defendant company to send all its cars used in carrying ore, after they are unladen at the point of transshipment, to the repair shops for inspection and for such repairs as any of them may be found to require, is reasonable; and persons employed to remove trains of such unloaded cars to the shops must be held to have assumed the extra hazard of such employment; and the company is not chargeable with negligence because one or more of the cars in such a train is out of repair. The facts that the foreman of the gang in which plaintiff was engaged, directed him, after turning a switch, to mount the second car from the engine for the purpose of aiding in sending the`unloaded cars down to the repair shop, and that plantiff was injured in mounting said car in consequence of its having a broken jaw-brace, are not sufficient to warrant a jury in finding the defendant company guilty of negligence, where there is no evidence that such forman was charged with the business of inspecting the cars, or knew of the defect in said car, or had any better means of knowledge than the plaintiff.

How far the defendant company would be liable for injuries to plaintiff as an employee, if caused by negligence of such foreman, not considered. Appeal from the Circuit Court for Jefferson County.

Action for an injury to the plaintiff's person from defendant's negligence. The case made by the complaint was substantially as follows: Defendant was a railroad corporation of the state of Michigan, operating a line of road from Negaunee to Escanaba in that state. On the 31st of August, 1872, and for a long time prior thereto, plaintiff was in defendant's employ under a contract by which he was to perform services as a brakeman on ore trains in and about the yards and ore docks of defendant at Escanaba; and in such employment he was required to couple and uncouple cars, and to get off and upon trains in motion-to get off from trains and open a switch, and, after the trains had passed, to set up the switch again, and, as the trains returned and while they were in motion, to get upon them for the purpose of uncoupling the cars from the engines. In consideration of such service, defendant, besides paying plaintiff a certain sum per month, undertook to provide safe and suitable cars with all the necessary appendages, etc., and to have the trains and cars superintended and managed by competent and skilled servants and agents, so as to enable plaintiff to safely perform his said services. At the time and

place aforesaid, and while so working for defendant, plaintiff was subject to the directions of one O'Brien, a servant and agent of defendant, who was acting as conductor or head-manager or director of the ore trains in and about said yard and docks; and said O'Brien was under the supervision and direction of one Moore, defendant's yard master in and about said yard and docks; and it was the duty of Moore and O'Brien to make up trains and move them about said docks and yard, and to look after the cars and see that they were all in proper and safe condition. The cars used by defendant in and about said yard and docks are constructed with a "jaw-brace" (being a piece of hard-wood timber seven or eight feet long, two inches thick, and about four inches wide, fastened with iron bolts and screws to the under part of an iron box or fixture around the outside end of the axle of each car wheel), which jaw-brace extends from the back to the forward wheel of the car a few inches below the centre and on the outside of each car; and the same is made and used for the brakeman to place his foot on in order to get on the top of the car when it is in motion, and is the only means provided for that purpose on said ore cars, except pieces on the side of the car above, which the brakeman seizes with his hands when he puts his foot upon the jaw-brace; and it is impossible to get upon such a car with safety while in motion unless there is a jaw-brace attached. At the time and place aforesaid, defendant negligently used an ore car which was unsafe and defective in that the jaw-brace belonging thereto was broken off; and, with notice of that fact, defendant negligently moved said ore train with said broken car from the dock to the yard, and plaintiff was required as brakeman to get upon the train while in motion, draw the pin and uncouple the train, so that the cars might pass down into the yard; and, without notice or fault on his part, while attempting to get upon the train for the purpose mentioned, and by reason of such unsafe and defective condition of said car, he was thrown upon the track, and his left leg was crushed by the train passing over it, so that it had to be amputated above the knee, to his damage, etc.

The answer was a general denial, except as to defendant's corporate character.

The essential facts appearing from the evidence as to the circumstances under which plaintiff's injuries were received, are sufficiently stated in the opinion.

After plaintiff's evidence was closed, the court, on defendant's motion, rendered a judgment of nonsuit; from which plaintiff appealed.

For the appellant there was a brief by Markhams & Smith, his attorneys, with Edward S. Bragg of counsel, and oral argument by E. P. Smith:

1. It was for the jury alone to determine whether, under all