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therewith, and submitted the cause to the jury for specific findings covering the subject of liability for ordinary negligence, and for gross negligence as well. The result was the following verdict:

(1) Sarau came to his death by injuries received at the time and place alleged in the complaint. (2) Defendant's employees were guilty of want of ordinary cure and prudence in operating the car at the time of the accident. (3) Such want of ordinary care and prudence was the proximate cause of the injury to Sarau. (4) The motorman was guilty of gross negligence; his conduct was malicious, wanton, and reckless, evincing a disregard of consequences to others. (5) The car was going at a speed of 15 miles an hour when it ran

Indiana, B. & W. Co. v. Overton, 117 Ind. 253, 20 N. E. 147.

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Where, in an action against a railroad com pany for causing the death of the plaintiff's intestate, the complaint alleged that the killing was wilfully and intentionally done, a find ing of a jury, the effect of which is a conclusion that the killing of the decedent was through the negligence of the defendant, will not support the complaint, or a judgment thereon, in favor of the plaintiff, no matter what the degree of that negligence may be, as negligence in a case, whether it be in a de gree that may be termed slight, ordinary, or gross, is nevertheless negligence still; and. when wilfulness is the essential element in the act or conduct of the party charged with the wrong, the case ceases to be one of negligence Wilfulness and negligence are opposite of each other; the former signifying the presence of intention, and the latter its absence. Cleve land, C. C. & St. L. R. Co. v. Miller, 149 Ind. 490, 49 N. E. 445.

An allegation in a complaint in an action against a railroad company for killing the plaintiff's horse averred that the servants of the company negligently, mischievously, and wilfully caused a large amount of steam to be let out of a locomotive and expelled therefrom. whereby the horse was frightened and became unmanageable, and was so injured that it was necessary to kill him. This allegation was held to admit of no other interpretation than a charge of wilfulness, and, as there was no evidence to show that the escape of the steam was unnecessary, it could not be presume 1 that it was so, and the evidence failed to sustain the allegation of wilful injury, although it was sufficient to sustain another count of the complaint charging negligence. Per Ross, J., in Louisville, N. A. & C. R. Co. v. Davis, 7 Ind. App. 222, 33 N. E. 451.

Where, in an action for injury to plaintiff by the gripman of a street railway company in forcing him off from the car, the petition charged that the gripman actually pushed the plaintiff from the car, while the plaintiff's own testimony showed that the gripman first shoved at him with a broom, then put that down, and tried to strike him with his hand, when the plaintiff dodged the blow, and in doing so fell off the car and was injured, a demurrer to the evidence should have been successful, as the evidence did not correspond with the al

through the band, before it reached Sarau. (6) He could not have seen the car approaching him in time to have avoided the collision. (7) The motorman did not try to stop the car upon its becoming apparent to him that it would strike Sarau. (8) When the accident occurred the car was running at the rate of 15 miles an hour. (9) Want of ordinary care on Sarau's part did not contribute to produce the injury. (10) Damages were caused by the occurrence, for doctors' bills and hospital bill, $75, funeral expense, $421, physical pain and mental suffering of Sarau, $500, loss to his surviving relatives by his death, $4,500.

After the coming in of the verdict the court changed finding 6 so as to decide that

legations; and for another reason, that the petition did not charge negligence pure and simple, but a singular commingling or jumble of both negligence and wanton acts; and, if the act is intentional, the question of negligence does not arise, and so proof of negligence does not sustain a charge of wanton or intentional injury. Raming v. Metropolitan Street R. Co. 157 Mo. 477, 50 S. W. 791. 57 S. W. 268.

The policy of the Code of Procedure of Missouri is to require the party to state in his pleading his real ground of action or defense, and, if he chooses one ground, he cannot so enlarge it as to recover on another; and where, in an action for a personal injury, the issues made by the pleadings are not large enough to embrace the hypothesis of a wilful or intentional injury, it is error for the court to instruct the jury on such a theory, although the evidence in a proper state of the pleadings might have warranted such an instruction. for the procedure is very strict to the effect that it is error to submit to the jury an issue of fact not made by the pleadings. O'Brien v. Loomis, 43 Mo. App. 29.

In Wilson v. Chippewa Valley Electric R. Co. 120 Wis. 636, 66 L. R. A. 912, 98 N. W. 536, the court said: "This court has held that, where the complaint simply charges negligence or want of ordinary care, there can be no recovery on the ground of wilful injury, or that reckless and wanton disregard of another's rights, equivalent to wilful injury, which has been termed 'gross negligence, because this is a different cause of action. McClellan v. Chippewa Valley Electric R. Co. 110 Wis. 326. 85 N. W. 1018. Is the converse of the proposition true? We think it must logically be so held."

In an action against a railroad company for an injury alleged to have been caused by sparks escaping from the spark arrester of a steamboat, where the allegation of four counts of the declaration was that the defendant wilfully left the spark arrester open, thereby allowing sparks to escape and be carried by the wind upon plaintiff's property, and set fire to them, it was held that the charge involved more than negligence; that it implied malice. And that, as the evidence simply showed negligence on the part of the defendant, there could be no recovery under the evidence upon those counts. Montgomery v. Muskegon Boom.

Sarau could have seen the approaching car | listening, and no excuse for not hearing in time to have avoided the collision. and seeing what is in plain sight and hearing.

Exceptions were duly taken to preserve for review numerous questions, including those discussed in the opinion, so far as exceptions were necessary in that regard. Judgment was rendered in plaintiffs' favor on the verdict, from which this appeal was taken.

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Co. 88 Mich. 633, 26 Am. St. Rep. 308, 50 N. W. 729.

But in Richter v. Harper, 95 Mich. 221, 54 S. W. 768, where the word "wilful" was employed in a declaration which charged that the defendant wilfully, wantonly, negligently, and unlawfully caused the fire to be set which was the cause of the injury complained of, it was held that if the word "wilful" stood alone, or was coupled with other words which implied a purpose to do a direct injury to the property of the plaintiff, a contention that it was necessary for the plaintiff to prove more than ordinary negligence would be of more force; but, where the word was used in connection with others imputing negligence, it was not the rule that the plaintiff must show the appropriateness of every adjective employed in his declaration. The court said, further, that it was true that language was employed in Mont gomery v. Muskegon Boom. Co. 88 Mich. 633. 26 Am. St. Rep. 308, 50 N. W. 729, in seem ing conflict with this holding, but that the de cision of that question was unnecessary to the determination of the case, and, in so far as it implied a holding in conflict with the views here expressed, it should not be followed. This decision was approved and followed in Keating v. Detroit, B. C. & A. R. Co. 104 Mich. 418, 62 N. W. 575.

In an action for digging up the soil of a lot contiguous to the plaintiff, the allegation in the declaration was that the defendant, maliciously intending to injure the plaintiff, and deprive him of the use and advantage of his messuage, dug up the soil of a certain lot contiguons, whereby the foundation walls were subverted, and a great part of the messuage foundered and fell, and the residue was greatly broken and shattered. The defendant moved at the trial for a nonsuit, on the ground that, the declaration being founded on the malfeasance, and not the misfeasance, of the defend. ant, the question of negligence or unskilfulness could not arise; and that the declaration was not supported by the evidence, inasmuch as it appeared that the defendant dug on his own ground, which was lawful in itself, and it did not appear that the act was done maliciously. The motion was denied, and on the writ of error the supreme court held

Boerth v. West Side R. Co. 87 Wis. 288, 58 N. W. 376; Little v. Superior Rapid Transit R. Co. 88 Wis. 402, 60 N. W. 705; Lockwood v. Belle City Street R. Co. 92 Wis. 97, 65 N. W. 866; Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179; Johnson v. Superior Rapid Transit R. Co. 91 Wis. 233, 64 N. W. 753.

If a traveler, by looking, could have seen the approaching train in time to escape, it will be presumed, in case he was injured by a collision, either that he did not look, or, if he did look, that he did not heed what he saw. Such conduct is negligence per se.

Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W. 179.

Contributory negligence of the plaintiff,

neces

that it was properly denied, and in doing so said that, if the plaintiff had stated, in his declaration, that the act was done maliciously, further proof would have been sary. That it would then be a cases of malfeasance, an inquiry distinct in its nature from a case where damages are claimed, either on the ground of negligence or unskilfulness, or that the act complained of does. of itself. subject the party to damages, although done with the greatest care. But that the allegation "maliciously intended" was not of the essence of the action or descriptive of the manner of doing the act which occasioned the injury, and might well be rejected as surplusage. still leaving a good declaration, to support which the proof was competent. Panton v. Holland, 17 Johns. 92, 8 Am. Dec. 369.

It

In an action for a recovery for an injury alleged to have been inflicted by the defendant upon the plaintiff, the complaint alleged that the defendant negligently, recklessly, and wilfully so drove and managed his horses as to force the plaintiff into the ditch and upset him. was held that the words "recklessly and wilfully" were not necessary to make out a count for negligence; that they were surplusage, and were properly treated as such. Moore v. Drayton, 40 N. Y. S. R. 933, 16 N. Y. Supp. 723. And, as to the latter statement. see Edgerton v. New York & H. R. Co. 35 Barb. 389, infra, IV.

In an action against a highway commissioner for obstructing a natural water course which furnished the plaintiff water for his pas ture, where the plaintiff's petition averred that the acts complained of were wilfully and maliciously done, it was claimed by the defendant that a recovery could not be had for careless and negligent acts, but only for such as were proved to have been wilful and malicious; but it was held that, if the defendant is liable for negligent and careless acts, recovery may be had against him upon the petition charging the acts to have been wilful and malicious, without proof of malice; and the court said that this was so under the old system of pleading, which was more strict in its requirements, that the proof should correspond with the allegations of the declaration, than is the present system. That it was held that the al

however slight, precludes his recovering in | 72 Pac. 573; Nellis, Street Surface Railan action grounded on the defendant's neg- roads, p. 319; North Chicago Electric R. ligence, however great such negligence may Co. v. Peuser, 190 Ill. 67, 60 N. E. 78. have been.

It is negligence for a person to walk on the track of a railroad, whether laid in the street or not.

Tesch v. Milwaukee Electric R. & Light Co. 108 Wis. 593, 53 L. R. A. 618, 84 N. W. 823; Ryan v. La Crosse City R. Co. 108 Wis. 122, 83 N. W. 770; Wills v. Ashland Light, Power, & Street R. Co. 108 Wis. 255, 84 N. W. 998; Dummer v. Milwaukee Electric R. & Light Co. 108 Wis. 589, 84 N. W. 853.

The motorman is not required to stop his car when a person is walking on the track or beside the track.

Joyce, Electric Law, § 575; Eastwood v. La Crosse City R. Co. 94 Wis. 163, 68 N. W. 651; Lyons v. Bay Cities Consol. R. Co. 115 Mich. 114, 73 N. W. 139; Atchison, T. & S. F. R. Co. v. Schwindt, 67 Kan. 8,

legation of malice and wilfulness might be dis regarded as surplusage, and proof given of neg ligence and carelessness. McCord v. High, 24 Iowa, 336; Citing 1 Chitty, Pl. 424; 1 Hilliard, Torts, 138; Panton V. Holland, 17 Johns. 92, 8 Am. Dec. 369,-supra.

Where the plaintiff mingled in his petition and in the same count different incongruous causes of action,-one for rent accrued, and one for injuries to a mill, alleged to have resulted from the defendant's wilful negligence,an instruction that, unless the jury believed the plaintiff's mill was injured by the wilful negligence of the defendant, or someone in his employment, they should find for the defendant, as respected that branch of the case, was held to be clearly erroneous, as it might have seriously misled the jury, and the error in the instruction was not cured by the form of the allegation of negligence in the petition. That the allegation of "wilful" negligence in the pleading was wholly immaterial, and might have been struck out as surplusage. Taylor v. Holman, 45 Mo. 371.

In Roberson v. Morgan, 118 N. C. 991, 24 S. E. 667, the court said that the action seemed to have been brought and tried under §§ 52 and 53 of the Code, providing for the recovery of damages for setting a fire by which an adjacent landowner is injured, and that it was admitted in the statement of the case on appeal that the plaintiff and defendant were not adjacent landowners, and that, that being so, the sections did not apply, and the plaintiff's action could not be maintained; but that it was argued that it might be maintained at common-law, to which it was replied that the complaint did not allege a commonlaw liability, in that it failed to allege neg ligence, which the court held that it did not do in terms, but held, further, that negligence was in effect alleged in the allegation that the "defendant wilfully permitted" the fire to spread over and burn plaintiff's fencing, etc., and that, under the liberality of the Code practice, the complaint might be sustained as stating a common-law cause of action, as the court afterward held that the case was tried under the conception that the defendant was liable, if liable at all, under the sections of the Code mentioned, which was an error. The ef

Illinois C. R. Co. v. Hall, 72 Ill. 222; Penman v. McKeesport, D. & W. R. Co. 201 Pa. 247, 50 Atl. 973; Warner v. People's Street R. Co. 141 Pa. 615, 21 Atl. 737; Gilmartin V. Lackawanna Valley Rapid Transit Co. 186 Pa. 193, 40 Atl. 322; Beem v. Tama & T. Electric R. & Light Co. 104 Iowa, 563, 73 N. W. 1045; Ryan v. La Crosse City R. Co. 108 Wis. 122, 83 N. W. 770; Shanks v. Springfield Traction Co. 101 Mo. App. 702, 74 S. W. 386.

The facts that the plaintiff neither saw nor heard the coming car, and that his back was all the time turned toward the east,

fect of the case would seem to be a dictum that an allegation that "defendant wilfully permitted" the fire to spread that injured the plaintiff would be sustained by proof of negligence on the part of the defendant.

The term "gross negligence" includes all lesser degrees of negligence, and a charge in a petition in an action against a railroad company for injury sustained by reason of the wheels of one of the cars of the company running over his foot, that the act of the company was done through gross negligence, will not limit the right of recovery, if otherwise entitled, to an injury inflicted by the wilful or intentional act of the servants of the company. Hays v. Gainesville Street R. Co. 70 Tex. 602, 8 Am. St. Rep. 624, 8 S. W. 491.

In an action against a railroad company by a brakeman on one of its trains, where the complaint alleged that the injury sustained was caused by the negligence of defendant in failing to provide good and safe brakes and appliances connected and used therewith, and by the defendant's negligently and carelessly omitting to keep its brakes on said train in good repair, and knowingly allowing the same to remain out of repair, it was contended, on the part of the defendant, that, having averred that the defendant "knowingly" suffered the brakes and appliances to remain out of repair. the plaintiff took upon himself the burden of proving that the corporation had knowledge of the imperfection,-in other words. that, having stated his alleged grievances with unnecessary particularity, his proof, to authorize recovery, must make out his cause of action as he already had chosen to allege it; but the court held that the complaint was not made up of one continuous, single ground, but contained several grounds, one following another, which might and should be construed distributively. That the language might be divided into the following separate words: "Caused by the negligence of the defendant in failing to provide good and safe brakes and appliances connected therewith," and, if the complaint had stopped here. it would have been manifestly good, at least, in the absence of a demurrer; and, so framed, the question of knowledge of the imperfect condition of the brake and its appliances would not have been raised. That

are conclusive that he neither looked nor listened for it; and that certainly constituted negligence on his part.

It seems that from the time of drawing the complaint to the entry of judgment there was want of appreciation of the broad distinction between ordinary negli gence and intentional wrongdoing, the former being characterized by inadvertence and the latter by advertence, the one requir

Lockwood v. Belle City Street R. Co. 92 Wis. 97, 65 N. W. 866; Stafford v. Chippewa Valley Electric R. Co. 110 Wis. 331, 85 N. W. 1036; Wills v. Ashland Light, Power, & Street R. Co. 108 Wis. 255, 84 N. W. 998; Dummer v. Milwaukee Electric R. & Light Co. 108 Wis. 589, 84 N. W. 853; Ryan v. La Crosse City R. Co. 108 Wis. 122, 83 N. W. 770; Tesch v. Milwaukec Electric R. & Light Co. 108 Wis. 593, 53 L. R. A. 618, 84 N. W. 823; Watermolen, v. Fox River Electric R. & Power Co. 110 Wis. 153, 85 N. W. 663; McClellan v. Chiping intent, actual or constructive, to injure, pewa Valley Electric R. Co. 110 Wis. 326. and the other being inconsistent therewith. 85 N. W. 1018; Wilson v. Chippewa Val- Under the decisions of this court, and by there then followed another averment con. nected with the former by the conjunction "and," thus showing that it was an additional. or cumulative, charge or averment.-"and by the defendant's negligently and carelessly omitting to keep its brakes on said train in good repair."-and then followed the words "and knowingly allowing the same to remain out of repair;" that the word "knowingly" only qualified the last clause of the complaint. or grievance charged; and that, in order to recover under the first clause, it was not necessary to show knowledge of the defendant. Louisville & N. R. Co. v. Coulton, 86 Ala. 129. 5 So. 458.

ley Electric R. Co. 120 Wis. 636, 66 L. R.
A. 912, 98 N. W. 536.
Messrs. Bouck & Hilton, A. E.
Thompson, and John F. Kluwin for
respondents.

In an action against a railroad company by the parents of one who, it was alleged, had been killed by the derailment of an engine of a freight train on which the son of the plain tiff was head brakeman, and in which action the petition alleged that the deceased was killed, that his death was caused by the defective condition of the defendant's engine and track; and charged that this defective condition resulted, and the death was caused, by the gross negligence of the defendant,-it was held that the allegation of gross negligence in the petition included a charge of ordinary negligence, and was sufficient to support a ver Texdict based upon the finding of the latter. as & P. R. Co. v. Magrill, 15 Tex. Civ. App. 353, 40 S. W. 188.

Where the complaint in an action against a railroad company alleged that the defendant and its servants, upon arriving at the station to which the plaintiff had paid his fare, care lessly, recklessly, wilfully, and wantonly re fused to stop the car so that the plaintiff might safely alight therefrom, but ob'ige him to jump from the car while it was in rapid motion. În doing which he received the injury complained of, this was held to be a statement of two distinct causes of action. one for exemplary damages, and one for actual damages; and, the plaintiff, of his own mo tion, having elected to try his cause for ac tual damages, and there being some testimony responsive to such an issue, it was held not competent for the trial judge to withdraw the case from the jury on the ground that there was no injury shown responsive to the issues. Thomas v. Charlotte, C. & A. R. Co. 38 S. C. 485, 17 S. E. 226.

Marshall, J., delivered the opinion of the court:

III. Allegation of reckless or wanton negli gence, or both.

Where a count in a complaint for injury caused by a railroad company alleged that it was caused "by the gross carelessness, wantonness, or recklessness" of the defendant, no recovery could be had thereon, except upon proof that the defendant was guilty of having wantonly inflicted the injury, or of such reckless negligence as to be the equivalent of having wantonly or intentionally inflicted the wrong. Stringer v. Alabama Mineral R. Co. 99 Ala. 397, 13 So. 75.

In Kansas City, M. & B. R. Co. v. Crocker, 95 Ala. 412, 11 So. 262, the supreme court of Alabama said: "The word 'wilful' imports that the act to which it refers is done intentionally, purposely. This is not necessarily so with the word 'reckless.' The latter word has a wide range of meaning. In its milder sense it may imply mere inattention to duty,thoughtlessness.-indifference, carelessness, negligence, or import a heedless disregard of ob vious consequences;" also, that a complaint which charges recklessness in general terms charges no more than mere negligence, thoughtlessness, or inadvertence, which cannot be regarded as the equivalent of intentional wrong, and the averments of such a complaint by no means necessarily import that the objectionable act was wilful. Quoted and followed in Louisville & N. R. Co. v. Barker, 96 Ala. 435, 11 So. 453; Richmond & D. R. Co. v. Farmer, 97 Ala. 141, 12 So. 86.

And, as has been seen, the Indiana supreme court has gone further, and added the term "wanton" to the category, holding that it, with "reckless," simply imports ordinary negligence (supra, I.).

The word "recklessly," employed in a complaint, in qualifying the act of the defendant's servants in an action against a railroad company for injuring the plaintiff, means no more than "negligently." Highland Ave. & Belt R. Co. v. Sampson, 112 Ala. 423, 20 So. 566.

IV. Recovery on allegation of ordinary negligence, on proof of wilful or gross negligence.

Under a complaint alleging an ordinary trespass in wrongfully taking personal property, evidence may be given and a recovery may be had on account of the gross negligence

the better rule, it is believed, prevailing | using language of similar import in attemptwherever the doctrine of comparative neg- ing to state a cause of action, is improper. ligence does not prevail, as it does not here, This court so held, in effect, in Bolin v. that species of wrong, which has been de- Chicago, St. P. M. & O. R. Co. 108 Wis. nominated in this and some other juris- 333, 81 Am. St. Rep. 911, 84 N. W. 446, dictions "gross negligence," is impossible if and cases there referred to, and so held exthere is mere want of ordinary care. pressly in Wilson v. Chippewa Valley ElecTherefore to charge that an alleged wrongtric R. Co. 120 Wis. 636, 66 L. R. A. 912, doer was guilty of one species of wrongful 98 N. W. 536. In the former this lanconduct, and allow a recovery for guilt of the other, or to charge both as charac guage was used: "Inadvertence, in some deterizing the same wrongful act and allow gree, is the distinguishing characteristic of a general recovery, is wrong. A pleading negligence, while misconduct of a more repwith such an infirmity is indefinite and unrehensible character, characterized by rashcertain and open to a motion on that ness, wantonness, and recklessness of a perground. The practice of charging that one son as regards the personal safety of ancaused injury to another by careless, neg- other, has been designated by this court as ligent, wanton, and wilful misconduct, or of gross negligence." That involves "a suf

of the defendant. Wilkinson v. Searcy, 76 Ala. 176. The question decided arose upon a charge of the court that, if the act was done wilfully (in its strong sense), or was the result of that reckless indifference to the rights of others which is equivalent to an intentional violation of them; or if the injury had been wanton, or malicious, or gross,-the jury might award punitive or exemplary damages; and, the defendant having asked a charge to the effect that exemplary damages could not be awarded. as they were not claimed in the complaint, the court, on appeal, said the charge was correctly refused, as exemplary damages are not special damages, but might be claimed in the complaint as a condition of their recovery.

In Savannah & W. R. Co. v. Meadors, 95 Ala. 137, 10 So. 141, the court said that, under the system of pleading in Alabama under a count for simple negligence, a recovery might be had upon proof of wanton negligence.

And in Louisville & N. R. Co. v. Webb, 97 Ala. 308, 12 So. 374, it was also held that the practice prevailing in Alabama authorizes the introduction of evidence of reckless, wanton. or wilful negligence on the part of the de fendant under a complaint which avers only simple negligence.

Where a complaint counts upon simple neg ligence. a recovery can be had thereon if the proof shows that the injury was caused by the wanton, reckless, or intentional misconduct of defendant. Richmond & D. R. Co. v. Farmer, 97 Ala. 141, 12 So. 86. This was held to be the rule to rebut the defense of contributory negligence.

Where a count of a complaint against a railroad company for injury charged simple negligence as distinguished from wanton or wilful negligence, or its equivalent, it Was proper to admit evidence to show that the defendant negligently failed to use preventive effort after discovering plaintiff's peril, and that such negligence caused the injury; the conclusion, of course. being that failing to use preventive effort after discovering plaintiff's peril was the equivalent of wanton or wilful negligence, and in deciding another question on another count the court said so in so many words. Louisville & N. R. Co. v. Hurt, 101 Ala. 34, 13 So. 130.

In Louisville & N. R. Co. v. Markee, 103 Ala. 160, 49 Am. St. Rep. 21, 15 So. 511, the court, after citing authorities showing that

the various propositions, namely, that where the plaintiff counts upon wilful or wanton negligence, and the proof shows only simple negligence, there is that variance between the allegata and probata, which will defeat a recovery; that, if there is that variance between simple negligence and wanton or wilful injury that proof of the former will not sustain a complaint charging the latter, a replication to a plea of contributory negligence, averring wilful and intentional injury, would be a departure from a complaint charging simple negligence; and that a plea of contributory negligence is no answer to a complaint counting upon wilful or wanton negligence, said further: "The practice which has obtained in this state, and to some extent justified by adjudications of this court, of proving wilful injury, or wanton negligence as its equivalent, under a complaint averring only simple negligence, should no longer prevail It is not correct in principle or practice, and leads to confusion or injustice. A plaintiff is presumed to know his cause of action when he brings his suit, and has the right to state it in as many counts as he may deem it necessary to meet the varying phases of the evidence; and it is his duty to fully nform the de endant by his declaration of all the grounds of complaint relied upon for a recovery. Having done this, the defendant is in a condition to prepare his pleas in defense. It is not just for the parties to go to trial, and after having entered upon the trial, upon issues shaped by the pleading to permit either party, against the objections of the other, unless specially authorized by statute, to inject a new issue, and allow the plaintiff to recover upon a cause of action not stated in his complaint; or the defendant to avail himself of a defense of which his adversary is not apprised by the plea." This case was cited and followed in Alabama G. S. R. Co. v. Hall, 105 Ala. 599, 17 So. 176, and Jones v. Alabama Mineral R. Co. 107 Ala. 400, 18 So. 30.

In Rockford. R. I. & St. L. R. Co. v. Phillips, 66 Ill. 548, the court said that the real gravamen of the original declaration, and which was adhered to and preserved in each of the amended declarations, was that the defendant was the owner of the railroad, and operating it by running locomotives and trains thereon; that plaintiff's horse strayed and got upon the

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