SEPARATE CONCURRING OPINION.
GRAVES, J.I concur in the result reached by my brother Woodson in this cause but not in all the reasoning and language used.
I. I think instruction numbered 1 for the plaintiff is broader than the allegations of the petition, and in that is erroneous. However broad a scope the evidence in a case may take, and however proper an instruction would be (considered from the standpoint of the evidence introduced) as to having sufficient evidence to support it, yet if such instruction goes beyond the purview of the pleadings, it is nevertheless erroneous. In other words, a correct and proper instruction must be (1) an instruction based upon and authorized by the evidence, and (2) an instruction in no wise going beyond the purview of the pleadings. If in the trial of a cause the court permits the eviden.ee to assume a broader scope than indicated by the petition, such does not authorize an instruction broader in terms than is the petition. “A court does not possess the power to change by instruction the issues which the pleadings permit.” [Bank v. Murdock, 62 Mo. l. c. 73.]
And an instruction is equally erroneous whether it enlarges or restricts the issues made by the pleadings. [Mansur v. Botts, 80 Mo. l. c. 658.]
Of course, the petition might be amended so as *686to conform to the facts shown, and thus plaintiff would be able to reap the full benefit of his evidence, but such was not done in this case. The petition should have been amended to conform to the state of facts proven. [Budd v. Hoffheimer, 52 Mo. l. c. 303.]
There was no necessity of the plaintiff, being a passenger, going into details, as to the exact manner in which he was hurt, but having done so he is bound by the statements of his petition. [Hamilton v. Crowe, 175 Mo. 634.] By the petition he not only charges certain negligent acts of the defendant, but he avers that such negligence caused him to be injured in a certain specific place and manner duly pointed out in the petition. No claim that he was injured at any other place or manner than is thus stated. By his own act, he prescribes the issues. Why plaintiffs persist in specific allegations, both as to acts of negligence and other matters, in cases where the doctrine res ipsa loquitur applies, is a matter we do not understand. They will do so, however, and when they do must take their chances upon the increased opportunities for errors to creep into the record.
When this instruction went beyond the terms of the petition as pointed out by my brother, it became faulty, and because plaintiff by his petition has voluntarily limited the issues. By the petition he not only presented the issue of defendant’s negligence, but he has seen fit to limit the additional issue as to the place whereat, and the manner in which .that negligence brought about his injury. He need not have thus limited the latter issue, but having done so, he is bound by it so long as he does not.by leave of court amend his pleading. [Hamilton v. Crowe, supra; Budd v. Hoffheimer, supra.]
II. I concur in the result for an additional and very potent reason. To my mind this judgment is grossly excessive. If all other questions were out of *687tbe case it should be reversed and remanded for retrial that the ends of justice may be subserved. Whether the jury was inflamed by the proof (unobjected to, it is true, but incompetent, nevertheless, under the pleadings) of the alleged loss of sexual powers, we 'cannot say, but it does remain a fact that the verdict is much in excess of what should have been awarded. Carriers who negligently injure passengers should he held in substantial damages' for all such injuries, but not for inflamed verdicts.
For these reasons, I think the cause should be reversed and remanded.