The issues in this case were made up by the charge in the petition that the frog was not and had not been blocked, which charge was denied, and which denial was supplemented by the further allegation, on the part of the railway company, that the plaintiff knew the condition of the tracks, and continued in defendant's employ with full knowledge of the same, waiving thereby the right to complain of any supposed defect.

The testimony of plaintiff was that, at the time of the accident, about 1 o'clock in the morning, the frog was unblocked. In addition he called five witnesses, who testified that on the next morning they examined the track, and that there was no blocking in the frog, or, as one of them said, 'the same as no blocking at all.' On the other hand, the defendant introduced the testimony of seven witnesses, who examined the track either the next morning, or soon thereafter, and each of whom found the frog properly blocked,—one of them, the section foreman, testifying that, before the accident, he had himself put the blocking in.

Obviously, the uestion which the parties submitted to the jury was that of the existence or nonexistence of a block in the frog at the time of the accident. It is contended by the railway company that the court erred in failing to give a peremptory instruction to find a verdict for the defendant. The only witness who testified to the condition of the frog at the time of the accident was the plaintiff, and he testified that it was an unblocked frog; and while the section foreman testified that it was blocked before, and that he found it, the Sunday after, in the same condition that he had originally placed it, and while there was testimony of several witnesses that, immediately after the accident, the frog was found to be properly blocked, yet there was also equally satisfactory testimony to the contrary. As this latter testimony obviously contradicts that of the section foreman as to the condition of the frog after the accident, it tends to impeach it as to placing blocking in the frog prior thereto. At any rate, in view of the plaintiff's personal testimony, there was certainly a question of fact, to be submitted to the jury, as to whether the frog was or was not blocked at the time of the accident, and their conclusion in that respect cannot be challenged, and it would have been error for the court to have given a peremptory instruction, based either way, upon this disputed question of fact.

Again, it is said that the only testimony as to the condition of the frog prior to the accident was that of the section foreman, who testified that he had properly blocked it, and that, if that be ignored, there was no testimony tending to show that it was not at some time properly blocked, and the block removed without the knowledge of or notice to the railroad company. The statement of the section foreman may be considered as challenged by the counter testimony of plaintiff and his witnesses, and, in the absence of any testimony as to the condition of the frog prior to the accident, the jury were not bound to assume that the frog had once been properly blocked, and the blocking thereafter removed or destroyed. They were at liberty to infer that it never had been blocked, that the track as originally constructed at this place was as it was found to be at the time of the accident, and so a case was presented of the absolute omission of the railroad company to discharge its duty of providing a safe place for the movement of its trains and the work of its employees.

It is earnestly insisted by counsel for the railroad company that the court improperly narrowed the issues submitted to the jury by charging that the single question was whether the frog was blocked or not at the time of the injury, and it is urged that the true rule is that, if the railroad company had once properly blocked the frog, it incurred no liability to its employees by reason of the subsequent displacement of the blocking, unless such displacement was with its knowledge, or had continued for such a length of time as to impute notice to it. We do not question the proposition of law as thus stated, but the difficulty is that no such issue was tendered by the pleadings, and the parties evidently went to trial upon the single question whether the frog was or was not blocked at the time of the accident. The charge in the petition was that the frog was not, and had never been, blocked. The answer denied this fact, and did not assume to set forth as a defense that it had once been blocked, and the block displaced without the knowledge of or notice to the railroad company. The railroad company was apparently content to rest its defense upon the single question of the existence of blocking at the time of the injury. The testimony went to that alone. In respect to this matter, the trial judge, in overruling the motion for a new trial, observed as follows:

'The argument now advanced by defendant in support of his motion is that, even if the frog was unblocked, that fact, of itself, would not make defendant l able for the injury resulting therefrom; that the proof must go further, and bring to defendant knowledge of such unblocked condition. Either defendant must be proven to have had actual notice of such unblocked condition, or such condition must be proven to have existed so long as that, in the exercise of ordinary care, defendant should have discovered it. Defendant contends the proof did not fulfill these requisites as to notice, and that the jury were not instructed with reference to applying these requisites to the evidence.

'Neither in the opening statement to the jury, nor in the argument to the jury after the evidence had closed, did counsel for defendant lay his case on the line of these requisites. Throughout the trial, the position of defendant was that the frog was blocked at the time of the injury. Both in opening statement and in closing argument defendant's counsel insisted the frog was blocked at the time of injury. To this, defendant's evidence was pointed, and in fact limited, so far as it tended to refute the charge of negligence alleged and attempted to be proven by plaintiff. Defendant did not attempt to escape or avoid, by any showing of sudden tearing out of the frog, whatever force attended plaintiff's evidence as to an unblocked condition of the frog. On neither side was any testimony introduced tending to show any sudden destruction of blocking at this frog. But on either side the contest was as to whether the frog was in fact blocked at the time of the injury. Plaintiff rested his claim, touching the cause of the injury, on the attempt to prove such injury was caused by the frog being unblocked at time of injury. And defendant was equally content, as to evidence introduced, in attempting to prove the frog was then blocked. And defendant's counsel limited his argument to the jury upon the evidence to this same line of defense.'

Yet, notwithstanding the pleadings and the testimony seemed to narrow the issue to this particular matter, the court, in its instruction, discussed the further question of the liability of the company in case of an original proper blocking of the frog and its subsequent displacement. It said, among other things, on this matter:

'It evidence had been introduced to show that, suddenly, by some disarrangement of the machinery of the train, the wooden part of the frog or blocking had been pulled out of the frog at the time, so near the injury as that the company could not have been charged with negligence in not having found it out reasonably by inspection, through its workmen or otherwise, before the injury, then, in an accident of that kind, the company would not be liable for the injury to plaintiff, because the company would not have been negligent in not ascertaining that the block had been thus removed.'

So that it cannot be said that the proposition of law upon which counsel for the railroad company so strenuously insists was wholly ignored on the trial. It was, in fact, presented by the court to the jury, although, it is true, coupled with the statement that the issues made by the pleadings and the silence of the testimony in respect to the prior situation narrowed their inquiry to the single matter of the condition at the time of the accident.

It must be confessed that this case is not entirely clear, and yet, considering the entire record, we are not prepared to hold that there was error such as would justify this court in disturbing the judgment.

It is therefore affirmed.