The defendant demurred on the grounds that the declaration (1) did not set forth a sufficient canse of action, (2) showed that Barnett was a trespasser in defendant’s yard, and (3) showed that the injury was caused solely by Barnett’s negligence, and that by the exercise of ordinary care he could have avoided it. The plaintiff amended by striking the words, “ the engineer on said engine was looking, not at the track in front, but towards the fireman who was on the opposite side of the engine,” and by adding: “And said engineer could have seen said Barnett and said lumber and did see said Barnett and said lumber in time to have stopped before reaching said Barnett and said lumber, but said engineer failed to do so and failed to give any signal and made no effort to stop before reaching said lumber and said Barnett.” To the allowance of this amendment the defendant objected, because (1) it added a new and distinct cause of action, one not germane to the original action and not in harmony therewith ;, (2) it contradicts the original" declaration, and charges the engineer with actually seeing Barnett in time to avoid the accident; and (3) there was nothing in the original declaration to amend by. The defendant also demurred to the declaration as amended, on the same grounds as of the first demurrer.. Both the demurrer and the objections to the amendment were overruled, and the defendant excepted. It also-excepted to the denial of a new trial after a verdict for' the plaintiff.W. W. Brookes and W. T. Turnbull, for plaintiff in error."Wright & Meyerhardt and C. N. FEATHERSTONjeonim..
