1. The negligence charged in the petition was the maintenance of a defective street. During the trial it developed that this defect had been suddenly caused by the bursting of a large water-main, which almost instantly washed a hole in the street. There were no allegations in the petition charging that the city was negligent in maintaining the water-pipe, and the judge therefore properly ruled that the counsel for the plaintiff could not argue that the city was liable because of its negligence in respect of the water-main.
2. To meet this ruling, made during the concluding argument, plaintiff offered an amendment charging that the city knew or ought to have known of the defect in the pipe. This the court disallowed. If this amendment had been offered as the basis for the introduction of testimony; or if there had been a request to allow the case to be reopened for introducing evidence in support of the new allegations, the question would have arisen as to whether the amendment was germane. But, in the then state of the record, whether or not it introduced a new cause of actioq was immaterial, and the ruling was harmless. There was no evidence to sustain the charge in the amendment that the city knew or by the exercise of ordinary care could have known of the defect. There was therefore nothing in the record to sustain the new *83averment. Had it been allowed it could not have helped the plaintiff. Its disallowance did not harm him.
Judgment affirmed.
All the Justices concur.