
    Charles E. Brown v. Illinois Central Railroad Company, Appellant.
    Persons! Injury: pleadixgs. A petition in a suit for personal in-1 jury which omits to allege plaintiffs freedom from contributory negligence fails to state a cause of action.
    Same. In an action for personal injury, failure to state a cause of 2 action may be taken advantage of by a motion in arrest oí judgment.
    New Tria!. Where the court on its own motion, no question having 3 been raised as to the sufficiency of the pleadings, withdraws the case from the jury, the granting of a new trial on plaintiffs motion is not error.
    New Trial. An order granting a new trial will not be disturbed un4 less clearly wrong.
    
      
      Appeal from Hardin District'Court. — Hon. J. B. Whitaker, Judge.
    Tuesday, February 23, 1904.
    Suit to recover damages for a,personal injury and for wages due. There .was a trial to a jury, and, after the evidence was all in, the court, on its own motion, withdrew from the consideration of the jury the claim for damages. The plaintiff’s motion for a 'new trial was sustained oh this branch of the case, and the defendant appeals.
    
    Affirmed.
    
      W. 8. Kenyon and J. H. Scales (J. M. Diclcinson, of counsel) for appellant.
    
      W. L. Weaver and Albrooh & Dandy for appellees.
   Sherwin, J.'

The petition did not allege the plaintiff’s freedom from contributory negligence, and hence did not state a cause of action for damages.

'This failure to plead might have been taken advantage of by motion in arrest of judgment by the provisions of sections 3563, 3564, of the Code, and in such case it would undoubtedly have been the duty of the court to sustain the motion.

But the court did not permit the case to go that far. This issue was taken from the jury by an instruction given in the general charge, without specifying the reason therefor, and at that time no question had been raised as to the sufficiency of the pleading. If this action of the court had been based solely on the ground that no cause of action was alleged, the granting of a new trial would not necessarily have been error, it would even then have been a matter of discretion for the court to set the order aside and permit an amendment to the petition. The statute is liberal in permitting amendments to pleadings, and it is hardly probable that a trial court would take a case from the jury on its own motion because of defective pleadings, without first calling attention of counsel thereto and giving them an opportunity to amend. The defendant might waive the defect, and never raise the question, and the court would hardly assume the summary disposition of the case on account of such-defect in pleadings. If the court, as a matter of fact, withdrew the issue from the jury for other reasons, and afterwards concluded that it was a mistake to do so, we are not disposed to disturb the order granting a new trial, unless it shall clearly appear that it was wrong. The evidence presented a close case, but we are inclined to the view that it should have gone to the jury on the facts, with instructions covering the various propositions presented by the record.

The motion to strike the affidavit of C. E. Albrook is sustained, and the order granting a new trial is aeeirmed.

Weaver, J., taking no part.  