The injury for which the plaintiff seeks to recover arose in this manner: the railroad track was laid upon a descending grade, which at its lower end stopped at a street. There was no bunter or other obstruction to prevent cars from going beyond the end of the track. There was a telegraph pole near the end of the track, and, as we infer, in the street; and the injury to the plaintiff was caused by cars which accidentally, and apparently without the defendant’s fault, had become detached from a train, running beyond the end of the track and striking against the telegraph pole, which was thereby broken, and one or more of the wires fell upon the plaintiff’s horses and *185frightened them. The want of a hunter or other obstruction at the lower end of the track was the defect relied on. We cannot say that this was not such a defect as to warrant a verdict for the plaintiff. The jury might properly find that a bun ter should have been put up, in order to guard against just such accidents.
The defendant now objects that the want of a hunter was not a defect covered by the declaration. But the request for instructions and the ruling given did not rest upon the pleadings at all. If the request had rested on this ground, the plaintiff might have had leave to amend, if an amendment was necessary, which is doubtful. This objection is not now open to the defendant. Exceptions overruled.