
    The Missouri Pacific Railway Company v. Leroy E. Haggart, a minor, by D. C. Haggart, his Next Friend.
    
    No. 362.
    (58 Pac. 796.)
    
      Negligence — Inntncetions. It was reversible error for the’court to instruct the jury to take into consideration, in deciding upon the liability of the defendant, an act of negligence not alleged in the petition. ,
    Error from Jewell district court; R. M. Pickler, judge.
    Opinion filed October 9, 1899.
    Reversed.
    
      Waggener, Horton & Orr, for plaintiff in error.
    
      T. S. Kirkpatrick, and R. W. Turner, for defendant in error.
   The opinion of the court was delivered by

Wells, J.:

This action was instituted by the defendant in error to recover damages for personal injuries sustained by Leroy E. Haggart by reason of an engine of the plaintiff in error running into the team and dray which were being driven by him over a public crossing. The case was tried to the court and a jury, a verdict returned in favor of the plaintiff below for $1000, and judgment rendered thereon.

There are several assignments of error, either of which would, in the judgment of the writer of this opinion, entitle the plaintiff in error to a new trial, but as there is a division of opinion upon all but one, we shall not consider the others here.

In instruction No. 13, as given, the court required the jury to take into consideration, in fixing the liability of the defendant, an act of negligence not alleged in the petition. The instruction reads as follows: “If you believe from the evidence . „ . that defendant at the time had no sign-board at the crossing warning the public to look out for the cars, and but for the neglect of the defendant in not providing said sign-board . . . said collision would not have occurred, . . . you should find a verdict for the plaintiff.” This is manifest error.

The judgment of the district court is reversed and a new trial directed.  