I dissent. I think the allegations of the complaint were sufficiently broad to justify the court submitting to the. jury *728the question as to the negligence of the defendant in driving the automobile in such a way as to run over the plaintiff while he was standing waiting for the car to pass. The charge in the complaint is that the automobile was driven at a high, reckless and unlawful rate of speed, and that there was no gong, whistle or notice or warning whatever given to the plaintiff of the approach of the said automobile; that said automobile was caused and permitted to strike, knock down and run over the plaintiff, and that the injuries he sustained were caused solely by reason of the recklessness, negligence and carelessness of the defendant, its agent, servant or employee. Under such a complaint I do not think the plaintiff was limited to the high speed or the absence of warning, but was also justified in recovering if he could prove that the automobile was caused and permitted to injure the plaintiff.
I think that the question was fairly submitted to the jury, that the verdict of the jury that the defendant was negligent was amply sustained by the evidence, and that the judgment should he affirmed.
Dowling, J., concurred.
Judgment and order reversed, new trial, ordered, costs to appellant to abide event.