#### PARRY LEE MOSS, by her next friend, v. THE NORTH CAROLINA RAILROAD COMPANY.

(Decided March 22, 1898).

Action for Damages — Railroads—Public Carriers— Negligence — Pleading— Trial— Variance.

1. A complaint proceeding upon one theory will not authorize a recovery upon another and entirely different theory.

2. In an action by a passenger against a railroad company for personal injuries in which the allegations of negligence were that the defendant failed to stop its train at a station where she was to change cars, to allow her to get off, and suddenly and carelessly *890accelerated the speed of the train while she was getting off there, plaintiff cannot recover upon proof that the company failed to show her the safe way to go from one train to another at that station or from any train to the station or from the station to any train.

Civil action tried at Pall Term, 1897, of Alamance Superior Court before Adams, J., and a jury. The facts appear in the opinion. There was a verdict for the plaintiff and from the judgment thereon defendant appealed.

Messrs. E. 8. Parker, Jr.; A. W. Graham and J. A. Long for plaintiff.

Messrs. F. H. Busbee and A. B. Andrews, Jr., for defendant (appellant).

Eairoloth, O. J.:

The plaintiff sues for personal injury caused by the alleged negligence of the defendant. The plaintiff entered defendant’s passenger car at Oxford en route to Chapel Hill, N. 0. At University Station, on said line, it was. necessary to change cars and take the Chapel Hill train which stood out some short distance from the station, where the train on which the plaintiff came usually stops. The complaint alleges: “That when the train upon which they came (the plaintiff and her mother) reached the said University Station it did not stop but continued moving slowly by said station that the said Parry Lee Moss, accompanied by her mother came upon the platform of the car in which they were and that the conductor of said train commanded them in an angry and vehement way to get off if they were going to get off and that at the said command the said Parry Lee Moss immediately descended from said train and that while she was in the act of so descending the speed of said train was sud-*891clenly accelerated and that, owing to the failure of the said train to stop at said University Station and to the sudden and careless acceleration of the speed of the said train and owing to the command of said conductor, the said Parry Lee Moss was thrown under the train and her feet crushed, to her great damage,” etc.

These allegations were denied and there was conflicting evidence on each material point.

1st issue: “Was the plaintiff injured by the negligence of the defendant as alleged in the complaint?”

The charge was at length, and numerous prayers for instructions and exceptions were made in the course of the trial.

Among other things his Honor charged the jury: “That the plaintiff being a passenger on the defendant’s train going from Oxford to Chapel Hill and it being necessary for the, plaintiff to change cars at University-Station; that while she was going from the train on which she came to the said Station or from said Station to any other train, she was still a passenger; and that if she was injured by the failure of the company to direct and show her the safe way to go from one train to another, or from any train to the Station, or from the Station to any train, then the company is guilty of negligence and you should answer the first issue “yes.” Exception by defendant.

The above part of the charge was erroneous, and without intimating any opinion on the abstract question of law involved in the above quoted part of the charge, we find the error to consist in charging on a feature of negligence not alleged in the complaint. A defendant is called upon to answer the accusations made against him, but he is not called upon, and it would be unreasonable to do so, to anticipate and *892come prepared, to defend any other accusation. It is a settled maxim of law that proof without allegation is as unavailable as allegation without proof. There is nothing in the answer to assist the complaint, if the facts were as the charge assumes them to be. Conley v. Railroad, 109 N. C., 692. “A complaint proceeding upon one theory will not authorize a recovery upon another and entirely distinct and independent theory.” 4 Elliott on Railroads, Section 1594. Several interesting questions were discussed before this Court. Some of them do not arise out of the pleadings and some do so only incidentally. We cannot see that it would serve any useful purpose to consider them at present. The judgment below is reversed and a new trial is awarded.

New trial.