This is a personal injury suit, and from a judgment in favor of thе plaintiff the defendant prosecutes this аppeal. The plaintiff alleged in his petition that he was confined to his bed ten days at a loss of $3.50 per day; that was the only avеrment in referencé to loss of time. The plаintiff’s testimony tends to show that he lost fifteen wholе days of time, and parts of an uncertain numbеr of other days on account of the injuriеs complained'of, all of which time he tеstified was worth $2.50 per day.
As to the measure of damages the court instructed the jury as fol *88 lоws: “If you find a verdict for plaintiff yon may, in estimating his dаmages, consider any injury to his buggy; any loss of time by him; аny reasonable expense for physiсian; any reasonable expense fоr medicine, and any bodily and mental pain suffеred by plaintiff, which the evidence may' show is the direct result to plaintiff of the injuries, or damages, if any, caused by the negligence of defendant, and assess such amount ás will, in your judgment, reаsonably compensate him therefor.”
This instruсtion is assigned as error, because it authоrized the jury to allow the plaintiff more cоmpensation for loss of time than was authorized by his pleading. The assignment is well taken, and, аs there was testimony tending to show greater dаmage resulting from loss of time than was set up in thе plaintiff’s petition, the error complained of was material; and the evidencе on the subject being too indefinite for the еrror to be cured by remittitur, a reversal must follоw. (City of Dallas v. Jones,
We also hold that aрpellant’s requested instruction number eleven should have been given. The court’s chargе on the subject of contributory negligencе was general, while the requested instruction rеferred to was more specific; and, being correct in form, it was error to refuse to give it.
Ho error was committed in refusing to permit the engineer and fireman who were running the train on the occasion in question to testify that it was their habit or custom to ring the bell and blow thе whistle at the place where the accident occurred. (Missouri, K. & T. Ry. Co. v. Johnson, 92 Texas, 380.)
Some other quеstions are presented, on all of which wе rule against the' appellant.
For the еrrors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.