ON MOTION FOR REHEARING.
Beard, Justice.The defendant in error has filed a motion for a rehearing in this case in which the point most strongly urged is that we were in error in holding that a fair construction of the petition is, that the only negligence charged as the cause of the injury was the alleged failure of the defendant to inspect and keep its coal cars in reasonably good repair and safe condition, and not that the cars were unsafe by reason of improper or defective construction. The allegations of the petition are quoted in the opinion, 135 Pac. 1090, and need not be repeated here. The statements are that “the said brake broke by reason of being in disrepair, and being in an unsafe and dangerous condition.” “That defendant company did not furnish or provide the said plaintiff with safe machinery and appliances with which to work, and did not repair the brake and appliances upon said coal cars * * *, and did not exercise reasonable care -in the furnishing of said coal cars and appliances to this plaintiff, and that, if the defendant company had exercised due care and diligence in the inspection and repair of said coal cars, the same would have been in safe condition,” etc. “That at the time of furnishing the said coal cars to plaintiff for use in said mine the said defendant knew, or by the exercise of proper care would have known, that such coal cars and the brakes thereon were in disrepair and dangerous and unsafe.” It appears clear to us that the petition specifically charges that the cars were in disrepair, and for that *128reason were unsafe and dangerous, and that in negligently furnishing such unrepaired cars the company violated its duty to furnish reasonably safe appliances. The brake broke by reason of being in disrepair. The company did not repair the brake. If the company had exercised due care in the inspection and repair of said cars they would have been in safe condition. Elách and all of these allegations direct the attention to the matter of repair. To repair means, “To restore to a sound or good state after decay, injury, dilapidation, or partial destruction.” Disrepair, means, “The state of being in need of repair.” (Webster’s New International Dictionary). The specific allegations that the cars were in disrepair negatives the idea that they were originally defective or not sound and good. Counsel argues at length that as the petition alleges' that the defendant negligently failed to furnish safe appliances, that this general allegation was sufficient to admit proof of original defects. If it be conceded that such general allegation would be good against a general demurrer, there is another rule applicable here, viz: “The sufficiency of a complaint in an action for personal injury which undertakes to define the particular negligence which caused the injury must be tested by the special allegation in that respect; although the general allegation of negligence would in the absence of such special allegations be sufficient to make a prima facie case of negligence.” (Thompson’s Commentaries on the Law of Negligence, Vol. VI, Sec. 7452). In Hawker v. B. & O. R. R. Co., 15 W. Va. 628, 641, 36 Am. Rep. 825, the court said: “There was no necessity for the plaintiff to allege in his declaration what were the negligent acts of omission or commission .of the defendant, or when they took place, specificallyhut having done so, his proof must correspond to his allegations in his declaration, or he cannot recover.-” The rule is fully supported by the cases cited in the note to the section of Thompson quoted from.
It is urged that we were in error in holding that under the special -findings the jury was not warranted in assuming that the defect had' existed for sufficient time before the *129accident to have been discovered, etc.; and it is now said that interrogatory 7 presented a question of law. We do not think so. Had the jury found that the cars had been in disrepair for some definite length of time before the accident, it would still have been a question of fact for if to find whether or not that was a sufficient length of time under all of the circumstances for it to have been discovered by the exercise of reasonable diligence. The Supreme Court of Kansas in a very recent case, Estes v. Edgar Zinc Co., 136 Pac. 910, in which case it was alleged that the apparatus for starting and stopping the conveyor belt was defective in that it would start in motion after having been thrown out of gear without any one having pulled the rope provided for that purpose; and the question was whether or not it had done so. Special interrogatories were submitted to the jury, among which were the following: “Q. 14. Did plaintiff throw said drive belt out of gear before descending into the basement? A. Yes. Q. 15. Did said drive belt get into gear automatically after plaintiff went down into said basement? A. No evidence to show how it got back.’’ The general verdict was for plaintiff. The court held that before a recovery could be had the jury must believe that a defect existed in the mechanism for shifting the belt, by reason whereof the latter would start in motion without any one pulling the rope provided for that purpose, and that the answer to question 15, “No evidence to show how it got back,” left the matter in the situation of basing the verdict upon conjecture, and reversed the judgment. The case supports our view and we see no reason to change it.
Counsel have discussed a number of other points, but they were fully and at length argued in their 'brief and orally at the hearing and were then given consideration. However, we think on the questions here reconsidered alone, the defendant is entitled to a new trial.
There is another matter of pleading to which, perhaps, it may not be out of place at this time to call attention. Rule 23 of this court (104 Pac. XIV) requires that applications *130for rehearing in any cause shall be by petition to the court. In this case the application is by motion. It is so styled, and is in form and phraseology a motion. We have, however, given it consideration as though properly pleaded; but do not wish our doing so considered as a precedent in future cases. The motion for rehearing is denied.
Rehearing denied.
Scott, C. J., concurs. POTTER, J., did not participate.