
    Hugh Coyle, Respondent, v. The Third Avenue Railroad Co., Appellant.
    (Supreme Court, Appellate Term,
    September, 1896.)
    1. Negligence — Street railroads.
    An omission by the employees in charge of a cable car to give notice of its approach to a person who is aware thereof is not actionable negligence.
    2. Same — Judgment.
    .Where the complaint alleges negligence in the omission to perform particular acts, a recovery upon proof of an omission of reasonable care in other respects is not permissible without an amendment of the complaint or the litigation of such questions by consent.
    3. Trial — Substitution of another cause of action.
    Where the evidence offered is relevant to the cause of action alleged, although it tends to prove a different cause of. action, a failure to object to such evidence is not sufficient to show a consent to the substitution of another cause of action.
    Coyle v. Third Ave. E. R. Co., 17 Mise. Rep. 282, reversed.
    Appeal by the defendant from a judgment of the City Court of Hew York, at General Term, which affirmed a judgment for the plaintiff at Trial Term, upon a verdict in his favor.
    Action to recover damages for personal injuries alleged to have been sustained in a collision with one.of the defendant’^ cable cars through the neglect of an employee in control of the car to give warning of the latter’s approach.
    Hyman Levy, for respondent.
    Henry L. Scheuerman and Eugene Treadwell, for appellant.
   Bischoff, J.

The plaintiff .sued to recover damages for personal injuries which he claimed to have sustained in a collision with one of the defendant’s cable cars while driving his heavily laden cart over the tracks of the railroad at its intersection with Fif tenth street, in the city of New York.

The complaint contained no general averment of negligence on the part of the defendant, or any of its servants, but particularized the omission of the defendant’s servant in charge of the car to give timely warning of the latter’s approach as the only cause of the accident. On the trial it appeared from the plaintiff’s admission that he was aware of the approach of the. car when it was at Fourteenth street, more than 100 feet distant from the place at which he sought to cross the tracks. The evidence adduced in support of the cause of action was to the effect that, while no warning of the car’s approach was, in fact, given, its violent impact with the plaintiff’s cart was the result wholly of the omission to stop the car or slacken its speed, whereby the accident would have been avoided, in the exercise of reasonable care on the part of the defendant’s servant.

No amendment of the complaint was asked for, or had; and when the introduction of the plaintiff’s direct evidence was concluded, the defendant’s counsel moved for a nonsuit on the grounds that there was “no proof of any negligence on the part of the defendant as claimed in the complaint,” and that “ no negligence whatever ” was shown. The motion was renewed at'the close of the whole case, and again denied. These denials were erroneous.

The plaintiff knew of the approach of the car when he attempted to cross the track. Obviously, therefore, the omission to warn him of the car’s approach was not a proximate cause of the accident, not actionable negligence (16 Am. & Eng. Ency. of Law, 428); and while under a general averment of negligence a recovery may be had upon proof of ány state of facts from which it appears that the injuries complained of were caused wholly by the omission of reasonable care on the part of the defendant (Oldfield v. N. Y. & H. R. R. Co., 14 N. Y. 310, 314; Edgerton v. R. R. Co., 39 id. 227, 230), it does not follow that without an amendment of the complaint which charges negligence in the omission to perform particular acts, or without the litigation by consent of the parties of a cause of action not alleged, a recovery is permissible upon proof that the accident resulted from the defendant’s omission of reasonable care in some other respect. Boehm v. Mace, 28 Abb. N. C. 138; Woolsey v. Trustees, etc., of Ellenville, 69 Hun, 489; Zboynski v. Brooklyn City R. R. Co., 10 Misc. Rep. 7; Parker v. Rensselaer, etc., R. R. Co., 16 Barb. 315. The recovery in every case must be “ secundum allegata et probata ” (Romeyn v. Sickles, 1 Silvernail C. A. 594), and the rule forbids, though the action may not be deprived of its character as one for negligence, recovery upon proof of a cause of action other than the one alleged. Pomeroy’s Remedies & Remedial Rights, 610, § 533, etc.; 28 Am. & Eng. Ency. of Law, 59, note, 5.

The evidence urged- in support of the plaintiffs recovery was relevant to the cause of action alleged (Platner v. Platner, 78 N. Y. 90) and admissible as a part of the res gestae. Hence there is no room for inference from the defendant’s failure to object to the introduction of the evidence in some instances that it intended to consent to the substitution and litigation of a cause of action other than the one alleged. Frear v. Sweet, 118 N. Y. 454.

The judgments of the court below at General and Trial Terms must be reversed, and a new trial had, with costs to the appellant to abide the' event.

Daly, P. J., and McAdam, J., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  