(dissenting). In my opinion the judgment in this case ought to be reversed because the only cause of action pleaded was that the plaintiff was ignorant of the defects, danger, and risk from which he suffered, and the court charged the jury that he might recover upon proof that he was fully aware of them, and that the shift boss had promised to remove them, although he had pleaded no-such cause of action. The error of the court in the trial below lies deeper than the admission of evidence, because complete proof of knowledge by the plaintiff of the defects in the timbering of the mine, of the risks and dangers therefrom, of a promise of the master to remedy them, and of reliance‘upon that promise by the plaintiff, not *154only failed to constitute any cause of action set forth in this case, any ground of recovery, or any exception from the general rule that the servant assumes the risks he knows that was alleged; but, on the contrary, it conclusively negatived the existence of the only cause of action which the plaintiff pleaded in his complaint, to wit, that he was ignorant of the defects and dangers which resulted in his injury.
The general rule of law is that a servant assumes the ordinary risks and dangers of his employment which are known to him or which would have been known by the use of reasonable care to a person of ordinary ability in his situation. The plaintiff was drilling in the roof of the stope which collapsed. Under this general rule the legal presumption was that he had assumed the risk of the accident which befell him, and that the master was not liable to" him on account of it. To this general rule there are two exceptions which are utterly inconsistent with each other. They can no more exist and apply to the same case at the same time than two solid bodies can occupy the same space at the same time. The existence and application of one of them to a given case is a demonstration that the other does not and cannot apply to it. One of these exceptions is that a servant does not assume the risks of his employment which he does not know, and which a person of ordinary ability would not have known by the exercise of reasonable care, and for injuries resulting from such risks which were caused by the negligence of his master he may recover. The other exception is that for a limited time after the promise an employé does not assume the risks and dangers of his service which he knows, which the master has promised to immediately remove, and the risk of which he takes in reliance upon that promise, provided always that the danger is not so imminent that a person of ordinary capacity in the exercise of ordinary care would not rely upon the promise and continue the work. Ignorance of the risks and dangers is a sine qua non of the former and knowledge of them of the latter, exception. Counsel for the plaintiff knew these things when they drew their complaint and tendered their issue to this defendant. They took their choice of the two exceptions, and alleged that the plaintiff was ignorant of the defects, risks, and dangers from which he suffered, that the defendant was aware of them, and that its negligence caused the plaintiff's injury. They did not allege that the plaintiff was aware of them, that the defendant promised to remove them, or that the plaintiff relied upon any such promise. The defendant interposed a denial to the plaintiff’s averments. What, then, was the issue for trial? It was whether or not the plaintiff had escaped from the general' rule that he assumed the risks of his employment by virtue of the fact, which he alleged, that the risks and dangers were extraordinary and that he was ignorant of them. Now, concede that evidence crept into the case without objection to the effect that the plaintiff knew of all the defects and risks of the employment, and that the shift boss had promised to remove them before the accident. Such evidence established no cause of action in this case, because the plaintiff had pleaded no such cause of action. A recovery must be had secundum allegata et probata, and proofs without allegations are as futile as allegations without proofs. The only effect of evidence of *155this character was to demonstrate the fact that the cause of action which the plaintiff had pleaded did not exist, that he was not, as he had alleged, ignorant of the defects, risks, and dangers from which he suffered, but that he was fully aware of, and consequently assumed, them. Nevertheless, the court, over the objection and exception of the defendant, charged the jury that if the plaintiff knew the defects, risks, and dangers, if the shift boss had promised to remove them and if he relied upon that promise, he could recover in this action. This charge is, in my opinion, radically erroneous, because no such cause of action as that founded upon this supposition was pleaded in this case, and no such issue was tendered to the defendant for trial, because the maintenance of this theory by evidence demonstrated the fact that the cause of action which the plaintiff pleaded did not exist, and entitled the defendant to a verdict, and because there is no evidence in this record that the plaintiff ever relied on, or was in any way influenced by, the promise of the shift boss; but the testimony of the plaintiff is that he knew that the timbers were taking weight, that he knew all that any one knew, and that he did not think that' the place was dangerous. Malm v. Thelin, 47 Neb. 686, 691, 66 N. W. 650; Becker v. Baumgartner, 5 Ind. App. 576, 32 N. E. 786; Bogenschutz v. Smith, 84 Ky. 330, 1 S. W. 578; International & G. N. R. R. Co. v. Doyle, 49 Tex. 190; Louisville, N. A. & C. R. Co. v. Sandford, 117 Ind. 265, 19 N. E. 770; Hayden v. Smithville Mfg. Co., 29 Conn. 548; Stephenson v. Duncan, 73 Wis. 404, 41 N. W. 337, 9 Am. St. Rep. 806; Coal & Car Co. v. Norman, 49 Ohio St. 598, 32 N. E. 857; Peerless Stone Co. v. Wray, 143 Ind. 575, 42 N. E. 927; Epperson v. Postal Telegraph Co., 155 Mo. 346, 50 S. W. 795, 55 S. W. 1050; Buzzell v. Laconia Mfg. Co., 48 Me. 113, 77 Am. Dec. 212. In Malm v. Thelin, 47 Neb. 686, 66 N. W. 650, the Supreme Court of Nebraska said at page 691, 47 Neb., page 651, 66 N. W.:
“The presumption is that a servant employing machinery obviously defective has assumed the risk occasioned by the use of such machinery, and in order to recover he must rebut that presumption, and in order to rebut it he must not only prove, but he must plead, the facts which create an exception to the .rule — as, for instance, that on complaint to the master a promise was made to remove the defect and the machinery was used relying upon that promise. In Missouri P. R. Co. v. Baxter, 42 Neb. 793, 60 N. W. 1044, a judgment was reversed because the petition did not plead such exceptions; and in Dehning v. Detroit Bridge & Iron Works, 46 Neb. 556, 65 N. W. 186, an amendment had been required in a similar case before the plaintiff was permitted to introduce evidence of such exceptions.”
In Becker v. Baumgartner, 5 Ind. App. 576, 32 N. E. 786, the complaint was predicated upon ignorance of the danger on the part of the plaintiff, and - the proof was of knowledge, a promise, and reliance thereon. The court said:
“A recovery can only be' upheld secundum allegata et probata. The complaint is predicated, though imperfectly, upon the theory that appellee was ignorant of the danger, and this will not be supported by proof that he did know all about it, but remained in the service upon appellant’s promise to provide a remedy. Such facts would constitute a special contract, creating an exception to the general rule, and can only be proved when specially pleaded.”
*156This judgment should be reversed because it rests upon a cause of action that was never pleaded, and upon the determination of an issue that was never tendered to the defendant. Even after verdict a judgment upon a cause of action which was not pleaded in the complaint should be reversed. But in the case at bar ample objections and exceptions were taken when the court gave its charge to the jury.
2. Again, it was error for the court .to refuse to charge, as it did, that the mere happening of the accident raised no presumption that the defendant was guilty of negligence which caused the injury to the plaintiff. The rule is well settled that the breakage or fall of machinery, platforms, buildings, stopes, caves, and structures of every kind in the use of employés raises no presumption that the injury resulting to the latter was caused by the negligence of their employers; but -the burden of proof is upon the servants to show, by evidence outside the break or fall, not only that it was caused by a fault or defect of construction, but also that the employer knew of the fault or defect, or that a person of reasonable care, skill, and prudence would have known of it, and would have anticipated the fatal result which followed. The rule res ipsa loquitur has no application to such a case, and that fact ought to have been stated to the jury. Peirce v. Kile, 80 Fed. 865, 26 C. C. A. 201; Railroad Co. v. Stewart, 13 Lea, 432, 438; Dobbins v. Brown, 119 N. Y. 188, 194, 23 N. E. 537; Breen v. Cooperage Co., 50 Mo. App. 202, 213, 214; Blanchette v. Mfg. Co., 143 Mass. 21, 22, 8 N. E. 430; Jones v. Yeager, 2 Dill. 64, Fed. Cas. No. 7,510; Mining Co. v. Kitts, 42 Mich. 34, 37, 39, 41, 3 N. W. 240; Early v. Railway Co., 66 Mich. 349, 352, 33 N. W. 813; Sorenson v. Pulp Co., 56 Wis. 338, 341, 344, 14 N. W. 446; Huff v. Austin, 46 Ohio St. 386, 387, 390, 21 N. E. 864, 15 Am. St. Rep. 613; Epperson v. Cable Co. (Mo.) 50 S. W. 795, 807; Searles v. Railway Co., 101 N. Y. 661, 662, 5 N. E. 66; Smith v. Bank, 99 Mass. 605, 612, 97 Am. Dec. 59.
For these reasons it seems to me that the judgment below ought to be reversed, and a new trial granted.