122 Mich. 359 | Mich. | 1899
1. It is a common and just rule of pleading that the plaintiff must stand upon the averments in his declaration. He cannot allege one case of negligence, and prove another. He cannot be permitted to show a state of facts entirely different from that charged in the declaration. Plaintiff averred that, as he approached the crossing,—
“He looked and listened for an approaching train, slowed his horse down to a very slow walk, and continued to look and listen for an approaching train as he neared the point where said railway crossed Chipman street, at which time it was so dark that said plaintiff could not see; that his view was obstructed by the line of freight cars above mentioned; * * * and he began so listening when he was within about 20 rods' of said crossing, and*361 continued to so listen until he was struck by said train on ■said crossing, and he did not hear any train approaching said crossing; but, just as the horse and part of the buggy in which he was riding got upon said crossing, they were struck by said train.”
Upon the trial plaintiff testified that he and his companion stopped the horse, leaned forward, and looked out at the side of their inclosed carriage. This was objected do upon the ground that it was directly contrary to the facts set up in the declaration. The court evidently was at first inclined to so hold, and gave plaintiff permission to amend his declaration. This was refused, and the court admitted the testimony. I think this was error for which the judgment should be reversed.
2. I think the plaintiff did not make out a case of negligence on the part of the defendant. The engineer, fireman, conductor, brakeman, and baggageman all swear positively that the crossing signals were given, and state the reasons for their recollection. In addition to this, an entirely disinterested witness, a merchant, testified that he stood in front of his store, about 200 feet south of the crossing, saw the horse and buggy come along, heard the train come, heard the whistle blow, and watched the parties until they were struck at the crossing. The only testimony opposed to this is that of the plaintiff and his companion, who were, riding in this inclosed carriage, who stopped about two rods from the sidetrack — not the main track — for about a quarter to a half minute. They were not at all certain how far they were from the track. A strenuous effort was made on the part of the plaintiff’s attorneys to locate them as near the track as possible when they stopped. They immediately started up, and went from there to the track in this inclosed carriage. I do not think this testimony rises to the dignity of evidence, in the face of six witnesses in a position to know, who swear positively that the signals were given.
3. I think the plaintiff was guilty of contributory negligence. He knew he was approaching a dangerous place, where the train was at any time liable to cross. He rode
The judgment must be reversed, and a new trial ordered.