It is an elementary principle, of universal application, that the allegata and probata must agree. Any material variance between the allegation and proof, fails to sustain the pleadings, although mere surplusage is disregarded. The defendant in error in this case relied upon the liability imposed by statute for a failure to fence the track of the road, by plaintiff in error. This duty is imposed alone by statute, it not being a common law obligation. When cattle are killed by the company, at a point on the road where they are required by statute to fence, but have failed to do so, the company are liable for the damages sustained by the owner, without reference to the amount of negligence or care exercised by the company. But a person relying upon a recovery, under the statute, to entitle himself to its benefits, must bring himself within its provisions by averment and proof.
It has been held by this court, that the owner, to recover under this statute, must show by averment in his declaration, that the company were required to fence their track, and had failed to comply with that duty, and must negative the various exceptions in the enacting clause, and that the cattle were not injured at a point on the road within these exceptions. Chicago, Burlington and Quincy Railroad Company v. Carter, 20 Ill. R. 390. The declaration in this case was not objected to for the want of such averments, and they were traversed by the general issue. To recover under that issue, the plaintiff was required to prove every material allegation contained in his declaration, to entitle himself to a judgment. There was no evidence that the road had been in use for six months previous to the time when these cattle were injured. Nor did it appear that they were not killed at a road-crossing, within a town, city, or village, or more than five miles from a settlement. These things should have' been proved, as well as that the road was not fenced, together with any other averment of a non-compliance with the provisions of the statute, also the injury to the cattle, to warrant a verdict in favor of the plaintiff. For aught that appears in this record, the horses may have been killed at any of the excepted places on the road, or the road may not have" been open for use six months before the injury was sustained. There was no count in the declaration alleging that the injury was the result of negligence, nor could there have been a recovery on that ground; in its absence, even if the proof had shown such negligence.
We think that the evidence wholly fails to sustain the verdict in this case, and that the court below, for that reason, should have granted a new trial. The judgment must therefore be reversed, and the cause remanded.
Judgment reversed.
Breese, J.The statute, in my judgment, does not require the railroad companies to fence their track, or impose it upon them as a duty. If they do not fence, they are liable for injuries, without any proof of negligence. If it be a duty, it is one of imperfect obligation, which cannot be enforced. The statute affects the evidence only, nothing more.