delivered the opinion of the court.

This is an appeal from a judgment for damages claimed to have been sustained by the appellee by falling through a bridge in one of the appellant’s streets. The declaration alleges that, while crossing the bridge, the appellee fell through a hole therein, caused by two planks having-been removed therefrom. On the trial the appellee testified that, while on the bridge, he stepped on the ends of two of the planks therein, which, being loose, tilted, thereby causing him to fall. When the appellee rested his case, the appellant moved the court to exclude the evidence, because of the variance between the declaration and the proof as to the cause of the injury. This motion was overruled, and the trial proceeded to judgment on the declaration as originally filed, without any amendment being-made thereto. At the close of the evidence a request by the appellant for a peremptory instruction was refused.

This instruction should have been given for two reasons: First, the case made by the evidence was not that sued on in the declaration; and, second, there' is nothing in the evidence to warrant the jury in finding that the ap-' *361pellant liad any knowledge, either actual or constructive, of the defect in the bridge.

Beversed and judgment here for appellant.

Reversed.