While the complaint in this case is subject to just criticism by reason of its unnecessary averments, yet it clearly appears from ail the allegations that the plaintiff charges the defendant with the operation of the railroad and the duty of maintaining the tracks in repair; and under these averments he may introduce any evidence showing the obligation either as owner or lessee. In this respect the averments are not to be treated as conclusions of law, but as averments of fact, at least sufficient to resist the motion to strike out. The order should be affirmed, with ten dollars costs and disbursements. All concurred.