EMERSON, J.:
It was not error to grant the new trial for the reason set out in the first part of the first assignment of error, which is, that "the evidence is insufficient to justify the verdict in this: the evidence fails to show that it was the negligence or fault of the defendant which caused the injury complained of.”
It is evident the complaint was not framed with a view of a recovery under the statute, Comp. Laws, sec. 503, which, it is claimed, puts out of the question in such cases the negligence or want of negligence on the part of the railroad companies, and makes them insurers of property along their line against fires communicated from their locomotive engines-. If such was the design of the pleader, he is very unfortunate in the language chosen to express his cause of action. The form adopted by him is that of a common-law action for negligence. The woi*ds charging negligence and unskilifulness are material parts of the allegation, and must be proved as [223]*223alleged. They are the words which characterize and give form to the action. It is true all forms of action are abolished by the code, but the pleader is required to state the facts which constitute the cause of action, not facts which constitute a cause of action differing from the one to be established by the evidence.
But the appellant claims that he may now, and without amendment, abandon the case made by his complaint, and recover by force and in accordance with the provision of the statute. This is not allowable und#r the one hundred forty-ninth section of the practice act, because it would not be granting relief consistent with the case made by the complaint and embraced within the issues, and would be to allow the appellant to recover under a different form of action than the one selected by him. It would seem to me to be altogether too latitudinarian a doctrine, even under the very liberal intrepretation given to codes containing the exact or similar provisions as our section 149, to allow the plaintiff, after framing his complaint in language material and necessary for the form of action selected by him, on failure to prove on the trial these material and necessary allegations, to claim that they are immaterial in another form of action, under a statute, for example, and shift his right to recover to that ground.
The idea that under the code the old forms of pleading and the technical distinction between the different forms of action as they existed at common law could be entirely - abolished and lost sight of has never been realized. The court, in interpreting pleadings and administering relief under the code, is compelled to constantly keep them in mind. “Notwithstanding the liberal rule of construction applied to pleadings under the code, I am aware of no case or principle upon which a plaintiff may recover, not only upon facts not stated, but upon evidence which disproves those which are stated. The principle still remains that the judgment to be rendered by any court must be secund'wm allegata et 'probata:” Neudecker v. Kohlberq et al., 81 N. Y. 296; Tooker v. Arnoux, 76 Id. 397.
In the case at bar, the appellant had a right to elect whether he would pursue the right given him by the statue or the common-law action for negligence. He chose the latter, and [224]*224properly framed bis complaint with that view, and in making out his case on the trial, undertook to prove it. That he still adheres to it is apparent from the first sentence in his brief, in which he says: “This is an action for damages caused by the burning of personal property of the plaintiff, by fire communicated from the locomotive engine of defendant, which the plaintiff alleges was the result of defendant’s negligence.” The appellant relies upon the case of Anderson v. Wasatch & J. V. R. R. Co., 2 Utah, 518, as deciding that proof of negligence is not necessary. In thaffe case, the court say that the action “seems to be brought ” under the statute. If that was the fact, then it is not applicable to the case at bar. If the complaint in that case was framed like the one in this (and a point made in the brief of the appellant would seem to indicate it), then the court made an easy bridge over the difficulty presented by saying that it “seemed to be brought” under the statute, and the case should be overruled.
The appellant’s proof of negligence was very meager and unsatisfactory, and was met by proof quite as strong, if not more convincing, of the entire absence of any negligent, unskillful, or reckless management of the respondent’s engine on the occasion referred to. To say the least, the evidence upon this point was conflicting. Where there is a substantial conflict of evidence on a material point, this court will not revise the discretion exercised by the district court in granting a new trial: Newton v. Brown, 2 Utah, 126.
It is claimed by the respondent that the instructions given to the jury are contradictory; and for this reason, also, the order granting a new trial should be affirmed.
As we have, for the reasons above stated, determined to affirm the order of the court below, I shall not enter upon so critical an examination of the instructions as I otherwise would, but shall review them in a general way only.
The first instruction, but not numbered, in the record was given at the request of the respondent, and is as follows: “Tire proximity of the Decker House to the defendant’s railroad track, and the material of which it was constructed, necessarily subjected it to great danger and risk of destruction by fire, caused by the ordinary operation of defendant’s line, and the fact that the defendant placed his property, for [225]*225the loss of which this action is brought, in the said house so exposed as it was to fire, was negligence on his part, and precludes his right of recovery.”
If this instruction was proper, and correctly presented the law of the case, there was an end of the matter; no other instructions were needed or ought to have been given.
The balance of the instructions were confined to definition, and a statement of the consequences, of contributory negligence on the part of the appellant. As a statement of law upon this subject,- there is no serious objection to any of them.
The first instruction above referred to is erroneous. It in effect decided the question of the defendant’s negligence as a question of law, and took the case away from the jury, and if it had been observed by them, nothing remained for them to do but to sign a verdict for the defendant. The general rule is, that the question whether a party has been guilty of negligence or not is one of fact, and not of law. Although the facts as stated in the instruction were undisputed, they were not such as to take the question out of the general rule.
In Railroad Company v. Stout, 17 Wall. 657, the supreme court of the United States say: “Certain facts we may suppose to be clearly established from which one sensible, impartial man would infer that proper care had not been used, and that negligence existed; another man, equally sensible and equally impartial, would infer that proper care had been used, and that there was no negligence. It is this class of cases, and those akin to it, that the law" commits to the decision of a jury.
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EMERSON, J.:
It was not error to grant the new trial for the reason set out in the first part of the first assignment of error, which is, that "the evidence is insufficient to justify the verdict in this: the evidence fails to show that it was the negligence or fault of the defendant which caused the injury complained of.”
It is evident the complaint was not framed with a view of a recovery under the statute, Comp. Laws, sec. 503, which, it is claimed, puts out of the question in such cases the negligence or want of negligence on the part of the railroad companies, and makes them insurers of property along their line against fires communicated from their locomotive engines-. If such was the design of the pleader, he is very unfortunate in the language chosen to express his cause of action. The form adopted by him is that of a common-law action for negligence. The woi*ds charging negligence and unskilifulness are material parts of the allegation, and must be proved as [223]*223alleged. They are the words which characterize and give form to the action. It is true all forms of action are abolished by the code, but the pleader is required to state the facts which constitute the cause of action, not facts which constitute a cause of action differing from the one to be established by the evidence.
But the appellant claims that he may now, and without amendment, abandon the case made by his complaint, and recover by force and in accordance with the provision of the statute. This is not allowable und#r the one hundred forty-ninth section of the practice act, because it would not be granting relief consistent with the case made by the complaint and embraced within the issues, and would be to allow the appellant to recover under a different form of action than the one selected by him. It would seem to me to be altogether too latitudinarian a doctrine, even under the very liberal intrepretation given to codes containing the exact or similar provisions as our section 149, to allow the plaintiff, after framing his complaint in language material and necessary for the form of action selected by him, on failure to prove on the trial these material and necessary allegations, to claim that they are immaterial in another form of action, under a statute, for example, and shift his right to recover to that ground.
The idea that under the code the old forms of pleading and the technical distinction between the different forms of action as they existed at common law could be entirely - abolished and lost sight of has never been realized. The court, in interpreting pleadings and administering relief under the code, is compelled to constantly keep them in mind. “Notwithstanding the liberal rule of construction applied to pleadings under the code, I am aware of no case or principle upon which a plaintiff may recover, not only upon facts not stated, but upon evidence which disproves those which are stated. The principle still remains that the judgment to be rendered by any court must be secund'wm allegata et 'probata:” Neudecker v. Kohlberq et al., 81 N. Y. 296; Tooker v. Arnoux, 76 Id. 397.
In the case at bar, the appellant had a right to elect whether he would pursue the right given him by the statue or the common-law action for negligence. He chose the latter, and [224]*224properly framed bis complaint with that view, and in making out his case on the trial, undertook to prove it. That he still adheres to it is apparent from the first sentence in his brief, in which he says: “This is an action for damages caused by the burning of personal property of the plaintiff, by fire communicated from the locomotive engine of defendant, which the plaintiff alleges was the result of defendant’s negligence.” The appellant relies upon the case of Anderson v. Wasatch & J. V. R. R. Co., 2 Utah, 518, as deciding that proof of negligence is not necessary. In thaffe case, the court say that the action “seems to be brought ” under the statute. If that was the fact, then it is not applicable to the case at bar. If the complaint in that case was framed like the one in this (and a point made in the brief of the appellant would seem to indicate it), then the court made an easy bridge over the difficulty presented by saying that it “seemed to be brought” under the statute, and the case should be overruled.
The appellant’s proof of negligence was very meager and unsatisfactory, and was met by proof quite as strong, if not more convincing, of the entire absence of any negligent, unskillful, or reckless management of the respondent’s engine on the occasion referred to. To say the least, the evidence upon this point was conflicting. Where there is a substantial conflict of evidence on a material point, this court will not revise the discretion exercised by the district court in granting a new trial: Newton v. Brown, 2 Utah, 126.
It is claimed by the respondent that the instructions given to the jury are contradictory; and for this reason, also, the order granting a new trial should be affirmed.
As we have, for the reasons above stated, determined to affirm the order of the court below, I shall not enter upon so critical an examination of the instructions as I otherwise would, but shall review them in a general way only.
The first instruction, but not numbered, in the record was given at the request of the respondent, and is as follows: “Tire proximity of the Decker House to the defendant’s railroad track, and the material of which it was constructed, necessarily subjected it to great danger and risk of destruction by fire, caused by the ordinary operation of defendant’s line, and the fact that the defendant placed his property, for [225]*225the loss of which this action is brought, in the said house so exposed as it was to fire, was negligence on his part, and precludes his right of recovery.”
If this instruction was proper, and correctly presented the law of the case, there was an end of the matter; no other instructions were needed or ought to have been given.
The balance of the instructions were confined to definition, and a statement of the consequences, of contributory negligence on the part of the appellant. As a statement of law upon this subject,- there is no serious objection to any of them.
The first instruction above referred to is erroneous. It in effect decided the question of the defendant’s negligence as a question of law, and took the case away from the jury, and if it had been observed by them, nothing remained for them to do but to sign a verdict for the defendant. The general rule is, that the question whether a party has been guilty of negligence or not is one of fact, and not of law. Although the facts as stated in the instruction were undisputed, they were not such as to take the question out of the general rule.
In Railroad Company v. Stout, 17 Wall. 657, the supreme court of the United States say: “Certain facts we may suppose to be clearly established from which one sensible, impartial man would infer that proper care had not been used, and that negligence existed; another man, equally sensible and equally impartial, would infer that proper care had been used, and that there was no negligence. It is this class of cases, and those akin to it, that the law" commits to the decision of a jury. Twelve men of the average of the community, comprising men of education and men of little education, men of learning and men whose learning consists only in what they have themselves seen and heard, the merchant the mechanic, the farmer, the laborer — these sit together, consult, apply their separate experience of the affairs of life to the facts proved, and draw a unanimous conclusion. This average judgment thus given it is the great effort of the law to obtain. It is assumed that twelve men know more of the common affairs of life than does one man, that they can draw wiser and safer conclusions from admitted facts thus occurring than can a single judge. * * * We find accordingly, [226]*226although not uniform or harmonious, that the authorities justify us in holding in the case before us, that although the facts are undisputed, it is for the jury and not for the judge to determine whether proper care was given, or whether they establish negligence.”
It is evident that the jury disregarded this instruction, and as it was erroneous, and given at the request of the respondent, he can not be heard to complain of this action in this regard, or that it was contradictory to the instructions upon which they did find.
'To the giving of the other instructions above referred to the respondent excepted. The only vice noticeable in them is, that they are not strictly applicable to the case then before the court; they do not fairly present the whole law of the case. So far as these instructions are concerned, the court gave the jury to understand that the appellant’s right to recover was in no way dependent upon this finding that there was negligence upon the part of. the respondent. There was no instruction upon this feature of the case. When the court of its own motion instructs the jury, and it appears from the record that those instructions were so given, they should be so framed as to make them applicable to the case made by the pleadings and evidence.
It is always error to instruct a jury upon abstract questions of law, not applicable to the issues and proofs in the case in which they are given, but this error will not furnish sufficient ground for granting a new trial, unless the effect has been to confuse, or withdraw the material issues from the attention of the jury.
The judgment of the lower court granting a new trial is affirmed.
Hotter, C. J., concurred.
Twiss, J., dissented.