May 1, 1923. The opinion of the Court was delivered by The plaintiff's intestate was driving along a public road that ran along the right of way of the appellant. The railroad tract came out of a cut onto an embankment. The public road crossed the railroad track just where the railroad track came out of the cut onto the embankment. The testimony tended to show that, when the mule which the deceased was driving came upon the railroad track, it saw the approaching train and whirled around, and threw the deceased out of her buggy and injured her so seriously that she died.
The appellant's argument states as follows:
"This is an action on behalf of W.L. Harvey, administrator of the estate of Daisy Harvey, deceased, for $200,000. The case was tried during the June term, 1922, and resulted in a verdict in favor of the plaintiff for $6,500.
"The complaint shows upon its face that the only allegation of negligence therein was the defendant's failure to give the statutory signals, which was the direct and proximate cause of plaintiff's intestate's death. There was a motion made at the conclusion of all the testimony for a direction of a verdict, and this motion was refused. However, we are not making an exception as to the Court's refusal to grant the motion."
ARGUMENT "The four exceptions shown in the printed case raise but two issues: First, that the Court erred in allowing witnesses to testify to facts not responsive to the allegations of *Page 377 the complaint, and, second, that the Court erred in allowing witnesses to testify as to the condition of the road running parallel to the track and near or on the right of way of the defendant. We beg to call to the Court's attention paragraph 13 of the plaintiff's complaint, which is as follows:
"`That the injuries of plaintiff's intestate, and which resulted in her death, were caused and occasioned by the careless, negligent, willful, and wanton conduct of the said defendants in maintaining its said roadbed and tracks upon said embankment and in said cut, together with the shrubbery allowed to grow alongside of said tracks, which cut off plaintiff intestate's view from the approach of said train, and in the said defendants, its agents, servants, and employees running said train at a rapid rate of speed through said cut and over the public road which said railroad crossed, and in not sounding the whistle or ringing the bell, or making known the approach of said train to plaintiff's intestate while traveling said public road.'
"The complaint specifically charges the defendant in maintaining its roadbed and tracks upon said embankment, together with shrubbery allowed to grow alongside said track, which cut off plaintiff's intestate's view from the approach of said train, the failure of the defendant to give the statutory signals and running its train at a rapid rate of speed.
"We were not charged in any portion of the complaint with negligence for the failure to keep in repair the approach to the crossing. We were not charged with maintaining a dangerous crossing. We were not charged with allowing to remain alongside the track for a distance of at least 200 yards a dangerous road leading up to the crossing in question. We did not know at the time the case was tried that we would have to meet these issues, for the reason that there were no such charges in the complaint."
1. While the testimony may not have been responsive to the allegations of the complaint, it was responsive to the appellant's defense of contributory negligence and contributory *Page 378 wilfulness. His Honor charged the jury that the railroad was not responsible for the public road. While this is true, the surrounding conditions might negative contributory negligence.
2. The same thing is true as to the evidence as to a dangerous crossing. It was responsive to the question of contributory negligence and contributory willfulness. The witnesses first stated the facts and then gave their opinions. This is allowed under the rule.
The exceptions are overruled, and the judgment affirmed.
MR. CHIEF JUSTICE GARY, and MR. JUSTICE WATTS concur.