#### James Finnegan, Respondent, *v.*Andrew J. Robinson Company, Appellant.

Third Department,

January 15, 1908.

Negligence — trial — charge as to negligence not alleged.

In an action by a servant to recover for injuries occasioned by the fall of a tile through an opening in the floor of a building, where the only negligence alleged is the failure of the defendant to furnish a reasonably safe place to work, in that the opening was not properly covered or guarded, it is error for the court-to refuse to charge “that the defendant was not liable for the actual falling or cause tof the starting of the brick or tile.” ■

*118Appeal by the defendant, the Andrew J. Robinson Company, from a judgment of. the Supreme Court- in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 25th day of July, 1907, upon the verdict of a jury for $9,000, and also .from an order entered in said clerk’s office on the 25th day of July, 1907, denying the defendant’s motion' for ;a new trial made upon the minutes.

The defendant corporation, a contractor, was constructing a ten-story building. Plaintiff was in the service of the defendant and at work on the seventh floor of said building. Work was also being performed on one or more of the floors above. In each of the various floors were openings directly over each other.. Over the opening in the seventh floor there were temporarily placed plank to support a barrel of water filled by a pipe which came up from below. . Plaintiff in the performance of his duties was procuring a pail of water from said barrel when a brick tile fell from above and severely injured him. A judgment in his favor because of the alleged negligence of the defendant is now before us for review.

*Frcmlt Stewart*and *L. Sidney*Oarrere, for the appellant.

*Balter <& Sessions \_Hcwrvey D. Hinman*of counsel], for the respondent.

Cochrane, J.:

The judgment must be reversed because of an error in the charge. The only negligence alleged, in the complaint is a failure of the defendant’ to furnish a reasonably safe place in that the opening above the plaintiff was not covered or properly guarded or protected. That this was the only ground of negligence was recognized by' the trial justice, and he at first properly instructed the jury that “ the sole negligence or want of care on the part of the defendant as claimed by the plaintiff is a want of reasonable care and caution in furnishing the plaintiff with a fairly suitable and safe place in which to perform his work.” But he afterwards further instructed them that they were, to be diligent in ascertaining not only .the cause of the fall of the tile but also the character and manner in which it was projected from above, and told them in the same connection *119that they had “ the right to examine the evidence and look at it carefully to see Avhether there Avas any carelessness on the part of the defendant corporation.” Such instruction ivas correct as bearing on the question of the safety of the place where plaintiff ivas in jured and for the purpose of enabling the jury to determine how the accident occurred and1 whether it ivas due to the failure to proidde a safe place. The jury had no right, however, under the complaint to predicate negligence on the cause, character or manner of the projection of the tile. Defendant’s counsel subsequently requested the court11 to charge as the laiv in this case that the defendant was not liable for the actual falling or cause of the starting of the brick or tile.” This Ayas refused and the court said: “ I leave it for the jury to say ivliat the fact was, if any fact.” This was the final instruction of the court to the jury on this subject, and defendant’s exception thereto presents an error which cannot be overlooked. It is very clear that the jury under this charge of the court may have based their verdict on facts pertaining solely to the dropping or projection of the tile and ivithout any reference to the failure of defendant to cover or protect the opening. The two grounds of negligence are widely divergent, and without reference to the evidence it is sufficient to say that if the defendant is to be held liable it must be in accordance Avith the allegations of the complaint. The rule applies that a recovery must be *secundum allegata et gprobata.*

The judgment and order must be reversed and a new-trial granted, with costs to the appellant to abide the event.

All concurred; Kellogg, J., in result.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.