Instruction I, given by the court of its own motion, directed the jury that the plaintiff was entitled to a verdict "if he has proven by a preponderance of the evidence that the defendant was negligent and that such negligence was a proximate cause of the collision and of the injury to the plaintiff," unless it was also established by a preponderance of the evidence that the plaintiff's own negligence contributed proximately to the injury. The instruction did not in any respect limit the negligence which it was necessary for the plaintiff to prove, to that which was alleged in the complaint. If this had been the only instruction given on the subject, I think it would be true, as claimed by the defendant, that it authorized the jury to find for the plaintiff if they concluded the defendant was negligent in any particular whatever, although the negligence was not charged in the complaint. *Page 519 The failure thus to limit the field of inquiry is emphasized somewhat by the refusal of the court to give instructions 3 and 5, asked by the defendant, which confined the negligence to be considered by the jury to that which was alleged in the complaint. But I do not believe the defect in the instructions could have prejudiced the defendant in any way. There was no attempt to prove any negligence other than that which was alleged and none other was discussed throughout the case. The instructions given directed the attention of the jury specifically to the particular acts of negligence charged in the complaint. It cannot be supposed that the jury would find a verdict for the plaintiff because they imagined the defendant may have been negligent in a manner not disclosed at the trial.
In other particulars I concur in the opinion of Justice Lawlor.