#### THOMAS J. COORE v. SEABOARD AIR LINE RAILWAY COMPANY.

(Filed 27 May, 1910.)

1. Pleadings — Proof—Variation.

There is no material variance between the allegations and the proof in an. action for damages for personal injuries, the aver-ments of the complaint substantially being that the alleged injury was caused by the negligent, etc., starting the train of defendant railroad company by the engineer, without signal or warning, which violently jerked the slack out of the train, pulled the cars farther apart, causing plaintiff to miss his footing and fall to his injury between the cars; and the evidence objected to being that “the engineer started off at high speed — quick start,” etc.

2. Evidence Withdrawn — Harmless Error.

When improper evidence, objected to, is withdrawn by the court from the consideration of the jury, the error in admitting it is cured.

3. Railroads — Orders—Negligence—Evidence—Instructions.

Upon conflicting evidence an instruction is correct in substance as follows: that if the engineer should not have started his train without a signal from plaintiff, an employee, if they find the conductor had ordered him to "thus signal from the top of the train, and if the engineer did start the train with a jerk without plaintiff’s signal, or did so at a signal from the conductor, jerking the cars apart so as to throw plaintiff between them to his injury, and this was the proximate cause thereof, the issue as to negligence should be answered for plaintiff.

Appeal by defendant from Lyon, J., at the January Term, 1910, of Moore.

The facts are sufficiently stated in the opinion of the Court.

Douglass & Lyon and II. F. Seawell for plaintiff.

Walter II. Neal and. U.. L. Spence for defendant.

Walker, J.

This action was brought by the plaintiff to recover damages for injuries alleged to have been sustained by him while engaged in the performance of his duties as a brake*703man in tbe service of tbe defendant. Tbe plaintiff alleged tbat be was ordered by tbe conductor to go up on tbe freight ears, wbicb were coupled to, an engine, for tbe purpose of giving a signal to tbe engineer to start tbe train, and of attending to bis other duties. Tbat when be was on tbe top of one of tbe cars and about to step to another car, tbe engineer, without any signal or warning from him, but after receiving a signal from tbe conductor to go ahead, suddenly and negligently started tbe train and violently jerked out tbe slack, which caused him to fall as be was passing from one car to tbe other.

There was evidence tending to show negligence on tbe part of tbe defendant. Tbe plaintiff, when testifying in bis own behalf, was permitted by tbe court to state tbat “Tbe engineer started off at a high rate of speed — -quick start.” Tbe defendant objected to this testimony upon tbe ground tbat it is not alleged in tbe complaint tbat tbe engineer started tbe train at a high rate of speed. Tbe allegation of tbe complaint is tbat tbe engineer suddenly, negligently, carelessly and without any signal or warning to tbe plaintiff, applied the steam to tbe engine and violently jerked tbe slack out of tbe said train, pulling tbe ears farther apart and causing tbe plaintiff to miss bis footing, and thereby be was thrown between tbe said cars and seriously injured. It is further alleged tbat, at tbe time tbe train was started by tbe engineer, tbe plaintiff was walking along tbe running-board on tbe top of tbe car and was in tbe act of stepping on tbe running-board of tbe car immediately in tbe rear, wbicb was coupled to tbe one upon wbicb be was walking, and tbat as tbe train was started and tbe cars were jerked apart, be fell between them and was injured.

It is provided by tbe Revisal, sees. 515 and 516, as follows: “No variance between tbe allegation in a pleading and tbe proof shall be deemed material, unless it has actually misled tbe adverse party to bis prejudice in maintaining bis action upon tbe merits. Whenever it shall be alleged tbat a party has been so misled, tbat fact shall be proved to tbe satisfaction of tbe court, and in what respect be has been misled; and thereupon tbe judge may order tbe pleading to be amended upon such terms as shall be just. Where tbe variance is not material as provided in tbe preceding section, the judge may direct tbe fact to be found according to tbe evidence, or may order an immediate amendment without costs.”

We do not think there was any substantial variance between tbe allegation of tbe complaint and tbe proof. If there was any variance at all, it was immaterial, and, if material, tbe defendant did not comply with tbe requirements of the sections *704in the Revisal to wbieb we Have referred. There was, though, no variance, as it clearly app.ears by the allegation in the complaint and the proof that the plaintiff was injured before the train had acquired any speed and that his fall between the cars was caused by the sudden and unexpected movement of the train, which jerked the cars apart. This exception is without any merit.

The court permitted the plaintiff, as a witness in his own behalf, to testify that he was acting carefully when he stepped from the one car to the other, but afterwards withdrew this testimony from the consideration of the jury. The defendant duly excepted to the testimony, but the withdrawal of the same cured the error of 'the court, if any was committed. Bridgers v. Dill, 97 N. C., 225; Cowles v. Lovin, 135 N. C., 488.

The defendant requested the court to charge the jury that the defendant, upon the allegations of the complaint and proof, is not liable for a sudden, violent or careless jerk of the train, nor for a jerk without a signal, unless the same was necessary in the handling of the train, there being no evidence that it was unnecessary. We think the instruction was substantially given by the court, except in the following respect: The court charged the jury that if the engineer should not have started the train without a signal from the plaintiff, and he did start it and jerk the cars apart, so that the plaintiff was thrown between the cars and.engine, and if the jury should further find that the act of the engineer was the proximate cause of the injury, they should answer the first issue “Yes”; and if they did not find the facts to be as above stated, they should answer the issue “No.” If the conductor ordered the plaintiff to go up on the cars, release the brakes and signal to the engineer when to start the train, and while the plaintiff was in the performance of his duty the engineer moved the train in obedience to a signal from the conductor, who had given the order to the plaintiff, and the plaintiff was thereby thrown from- the car and injured, as the proximate result of the negligent act of the conductor or the engineer, we are unable to see why the plaintiff is not entitled to recover. Redman v. R. R., 150 N. C., 400; R. R. v. Murray, 55 Kansas, 336.

It is unnecessary to consider the other exceptions, as some of them were withdrawn and those remaining have been sufficiently considered and disposed of by what we have already said.

No error.