delivered the opinion of the Court.
This suit was brought by Annie C. Gehring, administratrix of the estate of William Gehring, deceased, to recover damages under the statute. The negligence charged is that defendant negligently located and maintained a switch stand so close to one of its tracks as to endanger the lives and limbs of its servants operating trains; that deceased while on the side of a car which was being moved over defendant’s track, and in discharge of his duty as switchman in defendant’s service, and. exercising due care for his own safety, was knocked off of said car by said switch stand to and upon the track, and run over by the moving cars and killed; that he left him surviving Annie Gehring, his widow, who by reason of his death has been and is deprived of her means of support. The jury found defendant guilty and assessed the damages at $2,000, and judgment was entered against defendant for that amount and costs, to reverse which defendant sued out this writ of error. The special findings are irreconcilable with the general verdict, and under the provisions of the statute the latter must yield and should have been set aside.
Sess. Laws, 1887, p. 251, provides: “ When the special finding of fact is inconsistent with the general verdict, the former shall control the latter and the court may enter judgment accordingly.” As the case may be tried by another jury we refrain from commenting upon the evidence except to say, that under the facts proven, it is a close question whether or not a right to recover was established, and the jury should have been accurately instructed. But one instruction was given on behalf of plaintiff below, and that called for the finding of á' verdict in her favor. By it the jury were informed that a railroad company is bound to exercise reasonable care to furnish safe machinery, road-bed, track and structures connected therewith, and that if they believed from the evidence the switch stand in question was constructed and used by defendant and was an unsafe and dangerous structure, and that defendant had notice thereof before the injury, or might have had such notice by the exercise of ordinary care, and negligently failed to make it reasonably safe, and that by reason thereof, deceased, without notice of its unsafe and dangerous character, while in the discharge of his duty, with due care and caution, was without fault, then and there killed, as alleged in the declaration, and that his widow and next of kin have thereby sustained pecuniary loss in their means of support, then .the jury will find for the plaintiff. This instruction was erroneous, and not pertinent to the issue. The negligence averred is not that the switch stand was an unsafe and dangerous structure, but that it was located too close to defendant’s track. Under the rule that pleadings must be given the construction most unfavorable to the party pleading, this averment must be held to admit the switch stand was not an unsafe and dangerous structure, and that fact is not in issue, nor a matter submitted to the jury by the pleadings, and notice or want of notice as to that fact, would be wholly immaterial. Bor the errors mentioned the judgment is reversed.