engaged in the line of his duty, and acting under a special order from his superior.

The answers of the jury to the special interrogatories propounded to them by the plaintiff show that the intestate was

jury.

in the appellant's service as a brakeman at the time Findings of he was killed; that he was ordered to open a switch to let the train out of the yard; that he obeyed the order; that at the time he was struck by the engine he was endeavoring to get out the way of the train; that the train was run at a speed of from 18 to 30 miles an hour; that no signals or warnings were given; that if it had been run at a less rate of speed the intestate would have escaped injury; that the engineer in charge had injured other employes by his recklessness, and that his reputation was that of a careless and reckless enginer; that the company's officers might have acquired knowledge of his reputation by the exercise of ordinary diligence. The answers to the interrogatories propounded by the defendant state, in substance, these facts: The intestate was struck while walking westward on the track. The engine which struck him was backing. There was an open space of eight feet between the track on which the intestate was walking and the track running parallel with it. He had been in the service of the company for four years before his injury. The intestate got off the engine, when directed to throw the switch, on the space between the tracks, and then stepped back on the track The space between the tracks was clear and unobstructed. This space was prepared and maintained for the purpose of providing a safe path for the employes of the company. The intestate did not look eastward, to see whether the train was approaching, after he stepped upon the track upon which the train was moving. He could have seen the train, had he looked, and he had walked along the track about 60 feet before he was struck.

negligenceWalking on track unnec

We are strongly inclined to the opinion that the appellant was entitled to judgment on the facts stated in the special answers of the jury; but, as the evidence makes Contributory the case much stronger in the appellant's favor, we will place our decision upon that, and not upon the answers of the jury. The evidence clearly shows that the intestate was unnecessarily walking upon the track, and that he gave no heed to the approach of the train which he knew must follow him. If the intestate had gone upon the track because his duty required him to go there, or because he could not perform his duty without walking along it, the action might perhaps be maintained; but it was not necessary for him to walk upon

essarily.

the track, for he could with equal convenience have walked along the space between the tracks which the company had set apart for the use of its employes. Two ways of going to the switch were open to him,-one entirely safe, the other very perilous; and he voluntarily chose the perilous one. He left the safe way after having gone upon it, and took the dangerous one; and, although he knew the danger to which he exposed himself, he took no precautions to avert it. While walking along the track, he was not engaged in a duty which required and absorbed his whole attention, so that the case cannot be brought within the rule that absolves an employe who is engrossed in duty on the track from the exercise of a high degree of care. It was the duty of the intestate to use due care to avoid injury, and to constitute due care it is. essential that the precaution exercised should be proportionate to the danger which the person upon whom this duty rests knows that he incurs. Cincinnati, I., St. L. & C. R. Co. v. Long, 112 Ind. 166, 31 Am. & Eng. R. Cas. 138; Tuttle v. Detroit, G. H. & M. R. Co., 122 U. S. 189, 31 Am. & Eng. R. Cas. 216; Bresnahan v. Michigan Cent. R. Co., 49 Mich. 410. An element is here present which is conspicuous and important, and that is this: The intestate had been in the service of the company for four years, and was familiar with the mode of making up trains. He was bound to act upon the knowledge thus acquired, and to act with prudence and care, to avoid the peril which this knowledge informed him he was exposed to in making up the trains in the company's yard. The authorities go very far upon this subject, for they hold that where an employe has knowledge of danand remains in the service, he assumes the increased risk. Indianapolis & St. L. R. Co. v. Watson, 114 Ind. 20, 33 Am. & Eng, R. Cas. 334; Louisville, N. A. & C. R. Co. v. Sanford. 117 Ind. 265, and cases cited; Philadelphia & R. R. Co. v. Hughes, 119 Pa. St. 301, 33 Am. & Eng. R. Cas. 348; New York, L. E. & N. R. Co. v. Lyons, 119 Pa. St. 324; Wilson v. Winona & St. P. R. Co., 37 Minn. 326, 31 Am. & Eng. R. Cas. 244; Gaffney v. New York & N. E. R. Co., 15 R. I. 456, 31 Am. & Eng. R. Cas. 265. But we need not carry these decisions to their logical result in this instance; for it is enough to adjudge that there can be no recovery, for the reason that there was a lack of care on the part of the intestate which proximately contributed to his injury. We do not, therefore, do more than decide that there was such contributory negligence as bars a recovery, thus leaving other questions undecided. Judgment reversed, with instructions to award a new trial.

ger,

Pleading-Alleging Specific Acts of Negligence.-A petition in an action

to recover damages for negligently causing the death of plaintiff's intestate, set out the circumstances as a matter of inducement to the extent of stating the names of the conductor and engineer in charge of the train. It stated that the deceased was run over and killed by a designated train, and that his death was occasioned by the negligence of the defendants' servants while running, conducting and managing the locomotive and train of cars. Held, that as the petition was sufficient on demurrer, it was not open to an objection made by way of an objection to the introduction of evidence, that it did not state any specific act of negligence. Sullivan v. Missouri Pac. R. Co., 97 Mo. 113.

Same-Instructions-Averment of Negligence-Plaintiff brought an action to recover damages for personal injuries sustained while making a coupling. The petition averred that plaintiff stepped between a moving car and the engine to uncouple the same; that this might have been done safely if those in charge of the engine whose duty it was to be watchful of plaintiff, had exercised due care and promptly obeyed his signals: that his leg was caught under the pilot, and that he gave a signal to stop the engine which was not heeded, and the engine was not stopped until after he had sustained the injury for which damages were sought. Held, that an instruction that plaintiff could not recover on the ground that the fireman failed to observe that he went between the engine and the car, because plaintiff did not allege any negligence in that respect, was properly refused. Neville v. Chicago & N. W. R. Co., Iowa Sup. Ct., Jan. 31 1890.

Same-Sufficiency of Allegations-Evidence. In an action to recover damages for negligence, the plaintiff must allege in his complaint the acts or omissions of the defendant upon which he bases his right to recovery, and show that they occurred through or by the negligence of the defendant. The plaintiff must state the facts constituting his cause of action. He cannot state one and prove another. Nor, if he states one, can he supply the defects in his complaint by evidence at the trial. In such action the evidence on the part of the plaintiff must be directed to the proof of the facts alleged, and the instructions of the court must be confined to the allegations and proofs. It is the law arising upon those allegations, and upon the evidence offered to sustain them, which the court is to give to the jury. It is the facts thus ascertained, and the law applicable to them, which will authorize a verdict. Woodward v. Oregon R. & Nav. Co., Or. Sup. Ct., Jan. 6, 1890. STRAHAN, J., who delivered the opinion of the court, said: Instructions numbered 3 and 5 present somewhat analagous questions, and may be considered together. The point of obligation to these instructions is that they submit to the jury questions entirely outside of and beyond the allegations of the plaintiff's complaint, and apparently leave it to the jury to find as they may think proper, regardless of the particular acts of negligence charged in the complaint; and this leads us to the inquiry whether or not the plaintiff must allege the particular acts of negligence constituting his cause of action, and then confine his proof to those specific allega tions. Our Code, § 66, requires the complaint to contain a plain and concise statement of the facts constituting the plaintiff's cause of action; and one of the great objects to be attained by this enactment was to compel the plaintiff to place upon the record the specific and particular facts which he claims entitle him to recover. The field of inquiry is thus narrowed, and the defendant is enabled to come into court advised beforehand of the particular facts he must come prepared to contest. Does this rule apply to an action of negligence? In Heilner v. Union County, 7 Or. 84, this court held, in an action for negligence in allowing a bridge to be and remain out of repair, that the facts constituting the negligence should be averred. So it was held, in Lakin v. Oregon Pac. R. Co., 15 Or., 220, 34 Am. & Eng. R. Cas. 500, that a defect of a car or an engine could not be

shown in an action where the damage was alleged to have occurred through the negligence of the employes, and the defects of the engine or machinery were not relied upon as a cause of action. Waldhier v. Hannibal & St. f. R. Co., 71 Mo. 514, is more directly in point. It was there held that where the allegation in a petition against a railroad company is that the plaintiff received the injuries complained of through the negligence of the company in having and using defective machinery, and the running and managing its railroad and cars, and the proof was that the injury was occasioned by a broken frog, the plaintiff could not recover. To the same effect is Meyer v. Atlantic, etc., R. Co., 64 Mo. 542. In that case the court said: It is only by statutory enactment that defendant is required to sound the whistle or ring a bell eighty rods distant from a point where the railroad crosses a pubic road; and, if defendant was intended to be made liable on account of this neglect, such intention should in some manner have been expressed in the petition, either by statement of the facts which, under the statute, created the liability, or by some appropriate reference to the statute itself. So, in Edens v. Hannibal & St. J. R. Co., 72 Mo. 212, 5 Am. & Eng. R. Cas. 459, it was held that whatever was the real ground of complaint should be stated in the petition. Hence in an action against a railroad company to recover for injuries alleged to have been sustained through the company's negligence, if the negligence consisted in having a defective sand-box on the engine, and in keeping a defective frog in the track, the petition should not charge negligence in running the cars. So, in Field v. Chicago, R. I. & P. R. Co., 76 Mo. 614, the court said: The plaintiff must state the facts which constitute his cause of action. He cannot state one and prove another; nor, if he states none, can he supply the defects in his petition by evidence at the trial. So, also, in Chicago, B. & Q. R. Co. v. Harwood, 90 Ill. 425, it was held, in an action against a railway company to recover damages for the killing of the plaintiff's intestate, through negligence and carelessness in the managing and running of a train of cars, the declaration should show in what such negligence and carelessness consisted, and not charge the same in general terms, without disclosing any specific acts or omissions; and Thomas v. Georgia. R. & B. Co., 40 Ga. 231, holds that a plaintiff must recover on the particular acts of negligence charged in the complaint, and that other acts of negligence not alleged, cannot be made the basis of a recovery. So, in Long v. Doxey, 50 Ind. 385, it was held that a right to recover on a complaint charging negligence in the use of defective machinery could not be supported by proof of negligence in employing unskillful men to run the machinery. So, also, in Ohio & M. R. Co. v. Selby, 47 Ind. 471, in an action for negligence, it was held that an act the doing of which was complained of, and that such act was negligently done, must be alleged; also, that when the act complained of was sufficiently stated it was only necessary to aver that such act was negligently done, without setting out in detail the particulars of the negligence. It is true, in some jurisdictions, it seems to be held sufficient to allege generally that the injury complainnd of was carelessly and negligently inflicted upon the plaintiff, or that, by reason of the carelessness and negligence of the defendant, the plaintiff was injured; but this mode of statement has never been sanctioned or approved in this state, is at variance with the plain requirments of the Code, and would give the defendant no notice of the acts claimed to be negligent, so that he might come prepared to meet them."

MCMASTER

V.

ILLINOIS CENTRAL R. Co.

(65 Miss. 264.)

Fellow-Servants-Brakeman of Freight and Employes Operating Passenger Train. The brakeman of a freight train is the fellow-servant of the conductor, and other employes in charge of and operating a passenger train of the same company, and cannot recover for injuries caused by the negligence of the train hands on the passenger train.

Wrongful Death-Conflict of Laws-Lex Loci.- Where an action is brought for damages for personal injuries, or for negligently causing death, and the injury complained of occurred in another state, the rights and liabilities of the parties in relation to it are governed by the laws of the state where the injury occurred.

APPEAL from Circuit Court, Copiah County.

Action to recover damages for the killing of plaintiff's son, a brakeman in the employ of the defendant. The accident occurred in the state of Louisiana, and the declaration alleged that it was caused by the negligence of the conductor and other employes of a passenger train who were informed that plaintiff had probably fallen from the freight train upon which he was employed, and were warned to run cautiously and keep a lookout for him, but who recklessly and willfully proceeded at the usual speed, and ran over and killed him. Plaintiff appeals from a judgment sustaining a demurrer to the complaint.

L. B. Harris for the appellant.

W. P. and J. B. Harris for the appellee.

ARNOLD, J.-If a brakeman on one train of a railroad company is a fellow-servant of the employes in charge of or operating another train of the same company on the same road, the declaration was demurrable.

Test of coservice.

There is some diversity of authority as to who are fellowservants within the meaning of the rule which exempts the master or employer from liability to those engaged in his employment, for injuries suffered by them, as the result of the negligence or misconduct of other servants employed by him and engaged in the same common business; but subjection to control and direction by the same common master in the same common pursuit furnishes the true test of co-service. When servants are employed and paid by the same master, and their duties are