Subsequently, on an application for a rehearing, the following additional opinion was filed:
Mr. Chief Justice Dickey:On petition for a rehearing, it is insisted that the evidence does not correspond with the allegations of the declaration, in this: The averment is, that at the time of the injury, the plaintiff had no knowledge of the improper condition of the pilot, by which, it is alleged, the injury was caused; whereas, the testimony of the plaintiff is, that he measured the elevation of the pilot' just one week before, and found it in an unsafe condition, and therefore did know its dangerous condition. It is also said that the proof tending to show that he reported the condition of'-the pilot, and was assured that it would be- properly fixed, can be of no avail to the plaintiff, because there is no allegation in the declaration that he was induced to continue to run on the engine by a promise that the pilot would be fixed.
Our attention was not distinctly called to this supposed variance between the allegations and proofs, until the presentation of this petition. Had it been, it would have been noticed, but could have been of no benefit to appellant.
When the evidence was offered (tending to prove that plaintiff called the attention of the engineer to the dangerous condition of the pilot, and was assured that it would be fixed,) defendant did object to it, but the objection was not placed upon the ground of a variance from the declaration. ' Had this ground of objection been pointed out to the circuit court, the objection might have been at once obviated, under our statute, by an amendment of the declaration. We have heretofore held that an objection of this kind, which, if specially pointed out to the circuit court, may be at once obviated, can be of no avail, unless the attention of the circuit court is specially called to the point. A case ought not to be reversed in this court, on a question which the circuit court did not, in fact, decide, and which, if presented to that court, might have been at once obviated.
The objection to the admissibility of this evidence which was presented to this court on the hearing, by appellant, was not that of a variance, but was that the notice of the condition of the pilot was not given to the appropriate officer, it being insisted that it was no part of the duty of the engineer, to whom notice was given, to have the pilot fixed. This did not raise the question now presented.
The writer of this opinion thinks, also, that the proof complained of was admissible under the declaration. The vital question was, did the plaintiff know of the defective condition of the pilot at the time of the injury, so that his own imprudence in knowingly using a dangerous instrument did contribute, materially, to the injury. He did know it was in bad condition one week before, but the proof is that he then called the attention of the engineer to its condition, and he promised to have it fixed; and between that time and the trip on which the injury occurred, plaintiff was off the road, and used the engine on that trip on the belief that the pilot had been fixed; and so he did not know that the pilot was in an unsafe condition when he was making the use of it in which the injury occurred.
Be this as it may, we all agree that the objection to the proof, on the ground of a variance, can not be raised in this court, unless the question was distinctly submitted to the circuit court.
The petition for rehearing is denied.
Petition denied.