I concur with Mr. Justice Scott as I think if pleadings are to be at all considered on the trial of an action, where a plaintiff expressly alleges that the defendant is liable by reason of certain specified negligence and fails to prove the negligence specified he fails to sustain the cause of action alleged and, therefore, is not entitled to recover. I am also of the opinion that upon the facts as proved upon this trial the finding that the defendant’s superintendent was guilty of negligence was against the weight of evidence. The statement of counsel for the respondent that this court on the *586former appeal held that the evidence was sufficient to make out a cause of action under the Employers’ Liability Act is based upon an obvious misapprehension of the decision of the court. What the court held was that there was clearly no action but for the Employers’ Liability Act, and that considering the case under that act there were such manifest errors in the charge to the jury that the judgment could not stand. We refrained from expressing any opinion as to whether upon the evidence before the court on the first trial the plaintiff was entitled to a verdict, as the evidence upon the .new trial, which was necessary, might be so substantially different that the question presented on an appeal from a judgment upon the new trial would not be the same. As stated upon the former appeal, there was no question of the defendant furnishing the plaintiff with a safe place to work under Citrone v. O’Rourke Engineering Const. Co. (188 N. Y. 339), and the only question presented was whether or not the evidence justified a verdict that the defendant’s foreman was guilty of negligence in directing the removal of this column which supported the roof and the removal of which caused the falling of the stone that struck the deceased. It seems to me that as the undisputed evidence shows that the foreman examined the roof of the tunnel to determine whether or not it was safe to remove the "column, and after consulting with the experienced workmen found, as he supposed, that the roof was safe, that a finding that the defendant’s superintendent was negligent was not sustained by the evidence. The deceased was aware of the situation, had experience in work of this kind, and after the column was removed was engaged in inserting the timber to support the roof by driving wedges up against the rock, and while he was thus engaged the rock fell. I think the most that can be said is that there was an error of judgment as to the method of .conducting the work in relation to the time when this column should be removed.
I, therefore, concur in the reversal of the judgment.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.