CONCURRING OPINION.
GRAVES, J.I concur in what Brother Brown says as to the construction to he given to section 5425, Revised Statutes 1909. I agree with him that such statute in its make-up is penal so far as the minimum of $2000 is concerned, and compensatory as to the amount which may he found above that sum, and that it is not only proper but mandatory to introduce evidence to enlighten the jury in the exercise of their discretion,- so far as the damages in excess of $2000 are concerned. I also concur in the result of his opinion, hut do not agree with him as to some other matters. To my mind, instruction numbered 1 for the plaintiff does not cover any negligent act charged in the plaintiff’s petition. I concur with Brother Woodson wherein he says that the failure to send a man forward does not constitute negligence. He, however, overlooks, in my judgment, the failure to stop and listen before en*133tering upon the curve in the fog — this on the theory the evidence shows a duty in that regard. But this matter is not charged as negligence in the petition and of course should not he in the instruction. The petition so far as material reads:
“That at a point about one and three-fourths miles north of the said town of liberal there is' a sharp curve in the railroad track of defendant. That it was the duty of said Mead to see that the rear hand-car was not run in so close proximity to the front hand-car, on which the said Charles J. Boyd was, as to endanger the men riding thereon, and that it was the duty of said Mead to see that the said hand-cars were not rim upon the railroad track so as to come in collision with any train running on said railroad, and it was the duty of said Mead to so inform himself as to the movements of trains on said railroad track, that said hand-cars' should not be run so as to conflict with any such trains. That it was the duty of said Mead, before entering said curve, to discover whether or not a train was coming thereon.
“But the said Mead on the 29th day of July, 1905, being then and there in charge of said hand-cars as aforesaid, and the said Charles J. Boyd being engaged in running the front hand-car aforesaid under the superintendence, control and management of him, the said Mead, did run, operate and manage the said front hand-car so carelessly, negligently, recklessly and unskillfully on said railroad northward from the said town of Liberal on the time of a train, which the said Mead then and there knew or ought to have known was approaching from the north, and which he the said Mead then and there knew or ought to have known was liable to collide with the said hand-car going north, and the said Mead carelessly, negligently, recklessly and unskillfully caused and permitted said rear handcar to follow the front hand-car at a distance of about sixty feet, and carelessly, negligently, recklessly and *134unskillfully failed to discover whether or not a train was coming before entering said sharp curve aforesaid with the hand-cars aforesaid, that, at a point about one and three-fourths miles from the said town of Liberal and just after entering the sharp curve aforesaid, an engine and train of cars owned and operated by the defendant coming south on said track, without any' notice of its approach, was about to collide with said hand-car aforesaid on which said Boyd was employed, and while said Boyd was endeavoring to escape said collision and said approaching rear hand-car he was run over and killed by said engine and train of cars of defendant aforesaid.”
The petition therefore undertakes to specifically charge the duties of the foreman Mead, and also undertakes to charge specifically his neglect of duty or negligence, but the stopping and listening for an approaching train or the sending of a man forward is neither alleged to be a duty nor an act of negligence upon his part. Instructions must follow the issues made by the pleadings, and when specific acts of negligence are charged the plaintiff must recover upon one or more of such specified acts, of negligence and none other. It matters not that other acts of negligence may crop out in the case through the evidence, unless the petition is permitted to be amended to meet the proof. So I say this instruction numbered one does not present the case pleaded.
II. There is another question in this case. Does the negligence pleaded bring the case under section 5425, or is it under section 54261? It would seem that the principal act of negligence charged is that the foreman Mead was running his hand-car upon the fixed time of a regular train. This was the gravamen of the charge in Honea v. Railroad, 245 Mo. 621, and 247 Mo. 542, and that cause was brought under the compensatory section and not under what is now section *1355425. We lield that the case was properly brought under the compensatory section, now section 5426, and mulcted the railway company in damage to the extent of $10,000. If that judgment is right, the principal negligent act in this case does not bring the case under section 5425. My brothers who were so firmly fixed in opinion in the Honea case should furnish some satisfactory solution of this question. It matters not under which section of the statute the petition states a case, it does not effect the question of remanding the cause, and for that reason I have, as above indicated, concurred in the result