delivered the opinion of the court:

Appellant offered twenty-one instructions in the trial court. The court gave eighteen of them and refused three. Appellant complains of the refusal of these three. The first of the refused instructions reads as follows:

“The burden of proof is not upon the defendant to show how the plaintiff came to fall. If the preponderance of the testimony does not show that she fell by reason of the car being started before the plaintiff had an opportunity to alight therefrom, your verdict should be not guilty.”

It is said by appellant that the object of this instruction was to tell the jury what issue was raised by the pleading. The declaration alleged that while the plaintiff was in the act of alighting from the car the defendant started the car before the plaintiff had an opportunity to alight therefrom. We think the reasonable construction of this allegation is, that while plaintiff was in the act of alighting, but before she had an opportunity to complete the act, the car was started, thus limiting the opportunity to alight to the interval between the time she started to alight and the time the car was started. The instruction is misleading, in that it does not confine the opportunity to alight to the interval between the time when she started to alight and the time when the car was started. The jury might have concluded from the instruction that if there was sufficient time between the stopping of the car at the avenue and its starting to afford an opportunity to plaintiff to alight, then their verdict should be for the defendant, although they believed, from the evidence, that the car was started by defendant’s servants at a moment when they knew the plaintiff was in the act of alighting therefrom.

The instruction failed to definitely state the issue presented by the pleadings and was therefore properly refused.

The secónd refused instruction would have told the jury that if they believed, from the evidence, “that the plaintiff attempted to alight from the car in question while it was in motion, then the court instructs the jury that the plaintiff cannot recover in this action.”

Appellant states that this instruction was offered in order to advise the jury that the plaintiff could not recover unless she proved her cause of action exactly as she had alleged it. If it was appellant’s purpose to have the jury so advised by the court, it would have been both easy and advisable to submit an instruction embodying that proposition. The court, however, in another of appellant’s instructions told the jury that if they believed that the plaintiff attempted to alight from the car after it had started and was in motion, and that such act was negligence on her part and contributed to the injury, then the jury should find the defendant not guilty. This was all appellant was entitled to in this regard.

The remaining instruction which was refused by the circuit court is as follows:

“The jury are instructed that if, under the instructions of the court, they find, from the evidence in this case, that the plaintiff is not entitled to recover, then they will not have occasion to consider at all the character or extent of plaintiff’s damages, whether serious or slight.”

Although this instruction stated the law correctly, yet its refusal was not error, especially in view of the fact that the jury were cautioned by other instructions not to permit their sympathies to enter into their consideration of the case.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.