delivered the opinion of the court.
It is stated by appellee’s attorneys, “ The case was tried more particularly upon the second amended count, in which the averment is that, the day’s work being done, deceased was about to leave the mine by means of the elevator provided for that purpose; that it became the duty of the defendant to give deceased a sufficient notice or warning when the elevator was about to be raised, but that it negligently failed to do so, and in consequence while deceased was attempting to step upon it, the elevator started and he was injured.”
There are three counts to the declaration, the first of which charges that it was the duty of appellant to provide the elevator with suitable appliances to warn the deceased and keep him free from danger in using it; and the third count charges that it was appellant’s duty to warn the deceased of the danger in stepping on said elevator when it was about to rise. It is charged in each count that appellant negligently failed in its duty in these respects, but in none of them is there any such statement of facts as to make the duty evident as a matter of law. There is, however, in neither of the counts any charge whatever of neglect of duty in the operation of the elevator. The alleged negligence apparently relied upon by appellee’s counsel is that charged in the second count as above stated, viz., that there was a failure to give sufficient notice or warning when the elevator was about to start. The first and third counts seem to be practically abandoned.
Evidence was introduced by appellee’s attorneys for the purpose of showing negligence in the operation of the elevator, which, as above stated, is not any where charged in the declaration. This evidence was inadmissible. Objections were made to its introduction, which were overruled, as were also motions to strike out. Appellee was entitled to recover, if at all, only on the case made by his declaration. The defendant was entitled to know from the declaration what the negligence was with which it was charged. Having averred negligence in one respect, appellee was not entitled to introduce evidence, over appellant’s objection, tending to prove negligence of an entirely different character. Ebsery v. Chicago City Ry. Co., 164 Ill. 518-523.
The trial court gave to the jury an instruction, the concluding part of which is to the effect that if the jury believed from the evidence that the deceased “ was injured, because of the failure of the defendant, as alleged in the declaration, to give to him sufficient warning that the cage in question was about to start, then the jury must find the issues for the plaintiff.” This instruction is properly criticised for assuming that the defendant did fail to give sufficient warning, the only question left to the jury being whether such failure or something else was the cause of the injury; and because it declares as a matter of law that failure to give warning was negligence entitling appellee to recover. It is generally a question for the jury to determine whether an act or omission constitutes negligence. Here the jury are told to find for the plaintiff if they believed from the evidence that the failure to give notice caused the injury, whether or not such failure was occasioned by or constituted negligence of the defendant, whereas such failure might not necessarily, as a matter of law, constitute negligence. See Chicago City Ry. Co. v. Dinsmore, 162 Ill. 658.
Objection is made to the refusal of several instructions requested by appellant. We find nothing objectionable in some of the instructions thus refused, but appellant offered thirty-three instructions, and it has been repeatedly held that this is an unduly large number in a case of this character, to ask a trial court to consider. Chicago City Ry. Co. v. Sandusky (decided here at the present term), ante, page 164. If at another trial appellant’s attorneys condense their instructions within a reasonable number, it is probable no occasion' for such complaint will arise.
As there must be a new trial we make no further comment on the evidence. For the reasons indicated the judgment of the Circuit Court must be reversed and the cause remanded.