Opinion op the Court by
Judge ’Hurt
Reversing:
In February, 1913, tbe appellee, Mary Durr, in company with her husband, was traveling over the Louisville & Shelbyville pike, in a wagon, which was drawn by two mules, and going in the' direction of Louisville, when, near Tarascón, they met upon the road an automobile, which was owned by the appellant, Ballard & Ballard Company, and was being driven by an employee of the company, in the transaction of its business. The wagon was being driven by the husband of appellee, and at the point of meeting it was descending an incline, and the automobile was descending an incline from the other direction. When the wagon and automobile had arrived within seventy-five or one hundred yards of each other, the appellee and her husband both gave signals of warning to the driver of the automobile, by appellee holding up and waving her hand, and her husband by standing up in the wagon and waving his cap over his head. Although the chauffeur says that he saw the signals, he did not stop the machine nor lessen its speed. The machine was proceeding at the rate of •about twelve miles per hour. The appellee claims that [634]*634before the- automobile approached, • the wagon, was stopped, when the automobile came on and struck the mules, which caused them to wheel around, and the automobile went right -on forward, the wagon turned over, throwing appellee out upon the ground, and greatly injuring her. The driver of the automobile claims that the road at the point of meeting was seventeen feet in width; that he and appellee each gave the other all the .road necessary to enable each to pass, and that he did not strike, either the mules or .the. wagon with the automobile. He saw no signals from appellee or her husband until he was withing seventy-five or one hundred feet of the wagon, and he did not stop the machine, because to stop the machine so close to the team is more calculated to frighten it than to pass on by. He passed the wagon and stopped within twenty-five or thirty feet. The mules did not show any evidence of fright as the machine approached them. The team was not stopped until the wagon turned over. He saw the team and. wagon when .they were within three hundred yards or four hundred yards of him, but, as above stated, he saw no signals from appellee until within seventy-five or one hundred feet; that he could then have stopped the machine within fifteen or twenty feet, but the .team coming on at the same time, the stop could not have 'been made until the machine and mules were within five or six feet of each other. He did not slacken the speed of the machine until he had passed the wagon and heard •the appellee séream.
The appellee filed this suit in the Jefferson circuit 'court against appellant, seeking to recover damages of it for tide injuries sustained by her, which appear to have been serious and permanent.
The cause of action set’ out in the petition and the negligence of appellant relied upon for recovery is specifically set out in the petition as follows:
‘‘ She states that through and by the gross negligence of the defendant, through its said agent, then in charge .of said automobile, the same was negligently and care.lessly run into, upon and against the team and vehicle fin which the plaintiff was riding, with such force find violence as-to overturn the wagon in which plaintiff was riding, throwing her with great force and violence to ‘the ground, thereby severely injuring her upon her ankle, ;the ankle of- her right limb, and otherwise injuring said [635]*635right limb, and the bones thereof, from which filié han: suffered, great mental and physical pain and anguish," and will so continue to suffer the remainder of her life. ’
The appellant denied by answer the affirmative aP legations of the petition, and, also, plead that the appellee was guilty of contributory negligence. The averJ ments, with reference to contributory negligence, were denied by reply. . 1
Upon these issues’ a trial was had on the i3th day of October, 1913, which resulted in a verdict of the jury, and a judgment of the court in appellee’s favor, for the sum of $2,500.00. Upon this trial the appellee proved without objection from the appellant, that before meeting the automobile, .and.when it was within seventy-five to one hundred yards of the wagon, that she signaled to .the chauffeur, by holding up and waving her hand, five or six times, and that her husband stood up and signaled to him by waving Ms cap, and that the automobile driver did not stop the, machine nor give any heed to their warnings, in any way. , The appellant objected to the instructions given to the jury, and his objections being overruled he saved an exception. The appellant filed grounds and moved "the court for'a new trial, basing its grounds upon the alleged error in regard to the giving of instructions, and.' other errors. The court sustained.the motion and grounds for a new trial, to' which the appellee objected and excepted. ■ ’
On the 4th day of December, the case, again, came ■on for hearing, and the trial resulted in a verdict of ■the jury and judgment of the court in favor of appellant. Upon this trial, over the objection of the appellee, the court refused to allow her to put in evidence the facts in reference to the warnings given by her and her husband to the chauffeur of the automobile, as it approached the team and wagon. The appellant, at the close of the evidence for the appellee, and at the close of all the testimony, moved the court to direct the jury peremptorily to find a verdict for it, which motions were overruled. The- appellee offered instructions, in writing, which the court refused to give, and appellant offered an instruction, bearing directly in concrete' form upon the negligence claimed in the petition, which the court refused, and .then gave the same instructions, as were given upon the first trial. .The appellee filed'grounds and moved the court to grant a new trial The grounds [636]*636relied upon, were alleged errors of the court in excluding the statements of appellee, with reference to signals given the driver of the automobile, just preceding the alleged collision, and in refusing instructions offered by her, and in giving instructions. The court sustained the motion of appellee for a new trial, and set aside the verdict and judgment, to which appellant excepted. Thereafter the appellant moved the court to set aside the order granting a new trial, which was overruled and exception taken.
Thereafter, the case, again, came on for trial, in February, 1914, and resulted in a verdict of the jury and a judgment of the court in favor of appellee, and by which the amount of her recovery was fixed at the sum of $2,650.00. The appellant filed grounds and moved the court to set aside the verdict and judgment, The grounds relied upon were the alleged errors of the court in permitting, over its objection, the proof of the signals given by appellee and her husband to the chauffeur, just preceding the alleged collision, and in giving of instructions and refusing the same instruction offered by appellant on the second trial. The motion for a new trial was overruled, and appellant now comes to this court.
The instructions given by the court were the same upon each trial. If the instructions were erroneous, the court was not in error in setting aside the first verdict and judgment, and was in error, when it overruled appellant’s motion for a new trial after the judgment appealed from was rendered.
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Opinion op the Court by
Judge ’Hurt
Reversing:
In February, 1913, tbe appellee, Mary Durr, in company with her husband, was traveling over the Louisville & Shelbyville pike, in a wagon, which was drawn by two mules, and going in the' direction of Louisville, when, near Tarascón, they met upon the road an automobile, which was owned by the appellant, Ballard & Ballard Company, and was being driven by an employee of the company, in the transaction of its business. The wagon was being driven by the husband of appellee, and at the point of meeting it was descending an incline, and the automobile was descending an incline from the other direction. When the wagon and automobile had arrived within seventy-five or one hundred yards of each other, the appellee and her husband both gave signals of warning to the driver of the automobile, by appellee holding up and waving her hand, and her husband by standing up in the wagon and waving his cap over his head. Although the chauffeur says that he saw the signals, he did not stop the machine nor lessen its speed. The machine was proceeding at the rate of •about twelve miles per hour. The appellee claims that [634]*634before the- automobile approached, • the wagon, was stopped, when the automobile came on and struck the mules, which caused them to wheel around, and the automobile went right -on forward, the wagon turned over, throwing appellee out upon the ground, and greatly injuring her. The driver of the automobile claims that the road at the point of meeting was seventeen feet in width; that he and appellee each gave the other all the .road necessary to enable each to pass, and that he did not strike, either the mules or .the. wagon with the automobile. He saw no signals from appellee or her husband until he was withing seventy-five or one hundred feet of the wagon, and he did not stop the machine, because to stop the machine so close to the team is more calculated to frighten it than to pass on by. He passed the wagon and stopped within twenty-five or thirty feet. The mules did not show any evidence of fright as the machine approached them. The team was not stopped until the wagon turned over. He saw the team and. wagon when .they were within three hundred yards or four hundred yards of him, but, as above stated, he saw no signals from appellee until within seventy-five or one hundred feet; that he could then have stopped the machine within fifteen or twenty feet, but the .team coming on at the same time, the stop could not have 'been made until the machine and mules were within five or six feet of each other. He did not slacken the speed of the machine until he had passed the wagon and heard •the appellee séream.
The appellee filed this suit in the Jefferson circuit 'court against appellant, seeking to recover damages of it for tide injuries sustained by her, which appear to have been serious and permanent.
The cause of action set’ out in the petition and the negligence of appellant relied upon for recovery is specifically set out in the petition as follows:
‘‘ She states that through and by the gross negligence of the defendant, through its said agent, then in charge .of said automobile, the same was negligently and care.lessly run into, upon and against the team and vehicle fin which the plaintiff was riding, with such force find violence as-to overturn the wagon in which plaintiff was riding, throwing her with great force and violence to ‘the ground, thereby severely injuring her upon her ankle, ;the ankle of- her right limb, and otherwise injuring said [635]*635right limb, and the bones thereof, from which filié han: suffered, great mental and physical pain and anguish," and will so continue to suffer the remainder of her life. ’
The appellant denied by answer the affirmative aP legations of the petition, and, also, plead that the appellee was guilty of contributory negligence. The averJ ments, with reference to contributory negligence, were denied by reply. . 1
Upon these issues’ a trial was had on the i3th day of October, 1913, which resulted in a verdict of the jury, and a judgment of the court in appellee’s favor, for the sum of $2,500.00. Upon this trial the appellee proved without objection from the appellant, that before meeting the automobile, .and.when it was within seventy-five to one hundred yards of the wagon, that she signaled to .the chauffeur, by holding up and waving her hand, five or six times, and that her husband stood up and signaled to him by waving Ms cap, and that the automobile driver did not stop the, machine nor give any heed to their warnings, in any way. , The appellant objected to the instructions given to the jury, and his objections being overruled he saved an exception. The appellant filed grounds and moved "the court for'a new trial, basing its grounds upon the alleged error in regard to the giving of instructions, and.' other errors. The court sustained.the motion and grounds for a new trial, to' which the appellee objected and excepted. ■ ’
On the 4th day of December, the case, again, came ■on for hearing, and the trial resulted in a verdict of ■the jury and judgment of the court in favor of appellant. Upon this trial, over the objection of the appellee, the court refused to allow her to put in evidence the facts in reference to the warnings given by her and her husband to the chauffeur of the automobile, as it approached the team and wagon. The appellant, at the close of the evidence for the appellee, and at the close of all the testimony, moved the court to direct the jury peremptorily to find a verdict for it, which motions were overruled. The- appellee offered instructions, in writing, which the court refused to give, and appellant offered an instruction, bearing directly in concrete' form upon the negligence claimed in the petition, which the court refused, and .then gave the same instructions, as were given upon the first trial. .The appellee filed'grounds and moved the court to grant a new trial The grounds [636]*636relied upon, were alleged errors of the court in excluding the statements of appellee, with reference to signals given the driver of the automobile, just preceding the alleged collision, and in refusing instructions offered by her, and in giving instructions. The court sustained the motion of appellee for a new trial, and set aside the verdict and judgment, to which appellant excepted. Thereafter the appellant moved the court to set aside the order granting a new trial, which was overruled and exception taken.
Thereafter, the case, again, came on for trial, in February, 1914, and resulted in a verdict of the jury and a judgment of the court in favor of appellee, and by which the amount of her recovery was fixed at the sum of $2,650.00. The appellant filed grounds and moved the court to set aside the verdict and judgment, The grounds relied upon were the alleged errors of the court in permitting, over its objection, the proof of the signals given by appellee and her husband to the chauffeur, just preceding the alleged collision, and in giving of instructions and refusing the same instruction offered by appellant on the second trial. The motion for a new trial was overruled, and appellant now comes to this court.
The instructions given by the court were the same upon each trial. If the instructions were erroneous, the court was not in error in setting aside the first verdict and judgment, and was in error, when it overruled appellant’s motion for a new trial after the judgment appealed from was rendered. If the court was in error in admitting the facts in regard to the signals given by appellee and her husband to the chauffeur of the automobile, as evidence, it was in error in refusing a new trial after the last judgment. If it was error in the trial court to exclude these facts from the evidence upon the second trial, the court was not in error, when it granted a new trial after the second judgment.
The instruction given by the court, upon each of the trials, and which appellant insisted was prejudicial to it, was as follows:
“1. It was the duty of the driver of the automobile to exercise ordinary care to avoid injuring anyone upon the road, and that duty included the duties of running his car at a reasonable rate of speed, and of having it under reasonable control. If you believe from the evi[637]*637•dence that the driver of' the automobile failed to observe any one of the duties just mentioned,' and by reason of such failure, if any there was, he caused the injury to the plaintiff, then the law is for the plaintiff and you should so find. But, unless you so believe from the ■evidence, then the law is for the defendant and you should ■so find.”
The second instruction given defined correctly the measure of damages, if the jury should find for appellee, and the third instruction gave a correct definition of ordinary care. These were all the instructions given.
Upon the issue, which determined whether the plaintiff or defendant ought to succeed, the instruction set ■Out above contained all the advice from the court to the .jury. It will be observed that no complaint was made in the petition, that appellant’s car was not operated at a reasonable rate of speed, or that the chauffeur did not have it under reasonable control, or that his failure to ■operate it at a reasonable rate of speed, -or to maintain a reasonable control over it, was not alleged as being in any wise, the cause of the injuries sustained by the •appellee, nor is it alleged that he failed to exercise ordinary care to prevent injury to anyone upon the road. The propositions of law embraced in the instruction are •correct as abstract propositions, and in a case embracing issues, which would justify the giving of such an instruction, it would be proper to advise the jury as therein stated. The issue- was squarely made in the pleadings and in the evidence, as to the cause of the injuries. The appellee specifically alleged that the injuries were' caused by the driver of the automobile negligently driving the machine into, upon and against the team and wagon, in which appellee was riding, and thereby overturning the wagon and throwing her to the ground. If the automobile was not driven into, upon or against the team and wagon and thereby causing it to overturn, it would be immaterial as to what rate of speed it was traveling, or whether under control or not, or whether the driver was exercising ordinary care to ■prevent injury to anyone upon the road, because all of these failures of duty upon his part would have resulted in no harm to appellee. The plaintiff, in a suit at law, selects his own cause of action, and must succeed upon .it, if he succeeds at all. The defendant is only called upon to defend such unlawful acts as he may be charged [638]*638with, in the pleadings. • The instruction complained of-enabled the jury to find a verdict for appellee- on account of -something of which she did not complain, and which is not charged or relied upon in the pleadings. If .the; driver of the aiitomobile refused to heed -the signals given him,' by thé appellee, and -drove his car at an unreasonable speed, and thereby frightened the team and caused it to turn over the wagon, the jury would be authorized to find a verdict for appellee under the instruction given,. although it would be for an allegation of negligence entirely different from the one sued upon, and upon an issue not made in the pleadings.
In the case of Bowlin v. Archer, 157 Ky., 540, it was .said:
“It is an elementary rule of practice, that instructions should .be confined to the issues presented by the pleadings and the evidence.”
In L. & N. R. R. Co. v. McGary’s Admr., 104. Ky., 517, it is said:
“Having elected to specify wherein the negligence consisted, upon which he bases his claim for recovery, he cannot under these pleadings, recover by showing a different character of negligence. ’ ’
In Edwards’ Admr. v. C. & O. Ry. Co., 32 R., 1241, this court said:
“The rule is well settled, that a plaintiff in an-action for personal injuries, caused by the negligence of the defendant, may allege the negligence complained of in general terms, and having done this, may show any specific acts of negligence which the testimony warrants; but, if on the other hand he alleges specifically the acts constituting the negligence complained of, he cannot avail himself of. other acts, not alleged. in the pleadings.”
In Gaines & Co. v. Johnson, 32 R., 58, the court said: “But if special damages are sought to be recovered or the negligence is specified, then in the first instance the special damages must be averred, and in the second the pleader will be confined to the negligence relied upon.
“The instructions should conform to and follow- the pleadings. An instruction is not authorized upon an issue not made or presented in the pleadings.” This same principle is maintained in -C., N. O. & T. P. Ry. Co. v. Crabtree, 30 R., 1000; L. & N. R. R. Co. v. Dickey, 31 R., 894; Lexington Ry. Co. v. Britton, 130 Ky., 676; [639]*639Murray v. C. & O. Ry Co., 139 Ky., 379; Bogenschutz v. Smith, 84 Ky., 330.
The system of pleading, in our .courts, the system under the common law as well as under the Code, has for one of its chief ends, to require the parties to come tó an issue or issues, and then the court must conform the instructions given to the issues of the case made by the pleadings, and if this rule is not adhered to, a litigant will not know what he is called to prove or to defend.
For the reasons above stated, the court was in error in giving the instruction complained of over .the objection of the appellant upon each of the trials. • The appellant offered an instruction confining the right of appellee to recover, upon the jury believing from the evidence that the acts relied upon by the appellee for recovery, occurred. The court should have given in place of instruction No. 1, herein set out, an instruction, directing the jury to find for appellee, if it believed from the evidence that the appellant’s chauffeur did the specific things alleged in the petition as having caused appellee’s injuries, and if it did not so believe, to find for defendant.
•The remaining question to be determined is, whether or not the statements of appellee and of the chauffeur, as to the warnings given by appellee and her husband to the chauffeur, by holding up and waving their hands, just immediately preceding the alleged collision of the automobile and the team and wagon, are competent to be admitted as evidence. We are not unmindful of the long line of adjudications, which have held that in an action for personal injury, where specific acts of negligence are relied upon,- that evidence of other acts of negligence are not admissible. This rule, however, would not rendér the proof of a fact inadmissible, because it was, also, proof of some, act of negligence, other than alleged in the .pleadings, if it was, also, evidence which would go to the. support of .the specific acts of negligence relied upon in the pleadings. If appellee had have, in general terms, alleged that her injuries resulted from the negligence of the chauffeur, the proof of the signals .to him would have been unquestionably competent and admissible. If the chauffeur ran the machine into the team and wagon, when the. road-was sufficiently wide for him to have passed by without coming in contact with [640]*640the team and wagon, and it appears to have been so, then the negligence which caused him to do so, must have arisen, either from his utter disregard for the-safety of appellee, or from the fact that after seeing the appellee and being warned of her presence, he did not use ordinary care to have his machine under such control, that it would have enabled him to pass without coming in contact with the team and wagon, and that there was an absence of care upon his part to avoid a collision with the team and wagon. While the negligence complained of in the petition, is that the chauffeur negligently drove the machine against the team and. wagon, and thereby caused the wagon to upset, and such must be proven, before appellee is entitled to recover under the pleadings, yet, any fact or circumstance which is relevant, is competent evidence to show that the negligence .of the chauffeur was the cause of the collision, and to illustrate the nature of his acts, and to show why the chauffeur failed to avoid -a collision with the team and wagon, as it was his duty to do, and such fact or circumstance would not be incompetent, because it would be admissible to be proven in support of an averment of some act of negligence, which might have been relied upon in the petition, but was not relied upon. The allegation' in the petition was that the chauffeur negligently run into and against the team and wagon,, and the signals to him were a warning to him of the situation of appellee and the necessity for him to exercise care to avoid coming in contact with her team and wagon, and was competent evidence, bearing upon his-want of care. These alleged warnings, which the chauffeur says that he saw, were a part and parcel of the transaction, which resulted, as appellee claims, in the-automobile running into and against her team and wagon; were participated in by the actors.in the transaction; and took place in point of time just a few seconds before the alleged collision, and at the same place. To illustrate, if one was seeking the recovery of damages against another for negligently wounding him with a gun, and the allegation of his petition was, that such one negligently shot him, it could not be said, that proof of the fact, that a few seconds preceding his wounding, he requested the one wounding him to be careful in the handling of the gun, was not competent evidence.
[641]*641In McLeod, Receiver, v. Ginther’s Admr., 80 Ky., 403, this court, in discussing what things constitute res gestae, and which are admissible as original evidence, said:
“The general rule is .that all declarations made at the same time the main fact under consideration takes place, and which are so connected with it as to illustrate its character, are admissible as original evidence, being, what is termed a part of the res gestae; in other words,, a part of the thing done.”
The warnings given, in the instant case, were signals made with their hands, instead of words used. If appellee had have cried out a warning to the chauffeur not to run into the team and wagon, the admissibility of evidence of such cry could not be questioned. Res gestae are acts as well as words, and have been defined as the circumstances, facts, and declarations which grow out of the main fact, or are contemporaneous with it and serve to illustrate its character. Sterling v. Buchingham, 46 Conn., 461.
In 34 Cyc., 1642, res gestae are defined as “things done; the facts of the transaction, * * * the surrounding facts of a transaction, explanatory of an act or showing a motive for an act; matters incidental to a main fact, and explanatory of it, including acts and words, which are so closely connected with a main fact as will constitute a part of it, and without which the main fact might not be properly understood, * * * the circumstances, facts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character, including everything which may be fairly construed as an incident of the event under consideration.”
The signals to the chauffeur, in the instant case, were a part of the things done by the actors in and at the same time with the main transaction, which was the running into the team by the automobile and the tumping over of the wagon; they surround the main transaction and occurred at the same place; they are contemporaneous with it and serve to illustrate its character; and help to determine the truth or falsity of the issue of negligence, and are relevant to the issue.
The testimony of E. E. Lawrence, as to what was said in his presence by the driver of the automobile, after the injury in reference to the cause of the injury, [642]*642was not competent as against appellant, as substantive testimony, but might be proven for1 the. purpose of contradiction,'under a proper admonition to the jury. ' McLeod, Receiver, v. Ginther’s Admr., supra; L. & N. R. R. Co. v. Webb, 90 Ky., 332.
We conclude that the court was in error in excluding upon! the second trial the proof of the signals given by áppellee'and her husband to the chauffeur, when he wks ‘appró'aching them, just before the injury, an!d, therefore, was not in error in setting aside thé verdict find judgment after the second trial; and was in error in instructing the jury upon each of the trials.
. .lipón'the return of this case the appellee may, if she'desires, amend her petition, so as to make the petition conform to the facts of the casé.
For the reasons above stated the judgment appealed from is reversed, and the cause is remanded for proceedings; in conformity to this opinion. ■