Whalen

Appeal from judgment and order refusing defendant a new trial.

The plaintiffs are husband and wife, and bring this *670 suit to recover damages for personal injuries received by the wife.

They aver that defendant’s road crosses the highway, and that defendant so negligently and carelessly kept and maintained the crossing that it was allowed to become grossly out of repair and in an unsafe condition, in this, "that said defendant allowed a space in said crossing unnecessarily large to be and remain between one rail of said road and said crossing, at the point on said crossing on said road w'here vehicles were and are usually driven that while plaintiffs were crossing with a cart, without fault on their part, but by reason of the unsafe condition of the crossing, “ one of the wheels of said cart was caught in said large space between said crossing and said rail herein described, and the said cart was then and there overturned, and the plaintiffs violently thrown to the ground, whereby,” etc.

The court, in effect, charged the jury that the plaintiffs, in order to recover, must prove the allegations precisely as made; that it would not be sufficient to show that the crossing was…