LOUISVILLE AND NASHVILLE RAILROAD COMPANY, PLAINTIFF IN ERROR,

v.

MOSES GUYTON, JR., DEFENDANT IN ERROR

Taylor, C. J.

(after stating the facts). — The court gave to the jury, among other charges, the two following: “But if the plaintiff’s injury was caused by contact of the plaintiff with the terrace in question, and the negligence of the defendant or its agents either in putting in motion its cars with undue suddenness, or without due warning, or in negligently having the stool in question in the way, and such negligent acts or any of them contributed directly to plaintiff’s injury, you will find for the plaintiff.”

“It was the duty of the defendant to give reasonable and due notice or warning of the starting of its train, and if it failed to do this, such an omission would be negligence upon its part. If it was so negligent, and this negligence was the direct or one of the direct proximate causes of the plaintiff’s injury, you will find for the plaintiff.”

The court below erred in giving both of these charges, and both of them are erroneous for the same reasons.

The first of them in effect tells the jury to find for the plaintiff if they find that the defendant was negligent either in putting in motion its cars with undue suddenness, or without due warning, and that such negligence contributed directly to plaintiff’s injury. The second one tells the jury in effect to find for the plaintiff if they found that the defendant was negligent in giving reasonable and due notice or warning of the starting of its train, and if they found such negligence to have been the direct or one of the direct proximate causes of the plaintiff’s injury.

By an inspection of the plaintiff’s declaration, copied supra, it will be seen that neither of these phases of negligence is relied upon or alleged as the plaintiff’s cause of action. The first count of the declaration does not charge any negligence whatever, either general or specific. The failure of duty relied upon and specifically alleged in the second count is the negligent erection in the pathway of persons passing by and to and from the defendant’s trains, at its depot in Marianna, of a raised embankment or walk way. The only negligence either generally or specifically alleged in the third and last count is the elevating in the pathway of persons passing and leaving the trains of a stool used to assist passengers in entering the trains.

In Parrish v. Pensacola & A. R. Co., 28 Fla. 251, 9 South. Rep. 696, it is held that there can be no recovery upon a cause of action, however meritorious it may be, or however satisfactorily proved, that is in .substance variant from that which is pleaded by the plaintiff. Wilkinson v. Pensacola & A. R. Co., 35 Fla. 82, 17 South. Rep. 71. And in Jacksonville, T. & K. W. Ry. Co. v. Galvin, 29 Fla. 636, 11 South. Rep. 231, it is held that the instructions of the court must be confined to the issues made by the pleading, and that it was error for the trial court to .instruct the jury that they may base their verdict in favor of plaintiff upon a cause of action, however meritorious or satisfactorily proved, that is substantially different from that which he has alleged. Jacksonville, T. & K. W. Ry. Co. v. Neff, 28 Fla. 373, 9 South. Rep. 653.

We have examined the other charges requested by the defendant and refused, and that are assigned as error and not abandoned here, but find no error in such refusals. We deem it unnecessary to discuss the other errors assigned and argued.

For the errors found the judgment of the Circuit Court in said cause is hereby reversed, and a new trial ordered, the cost of this appellate proceeding to be taxed against the defendant in error. Hooker and Shackleford, JJ., concur. Carter, P. J., and Maxwell and Cockrell, JJ., concur in the opinion.