Boh Bros. Const. Co. v. Perry Heavy Haulers

HUTCHESON, Circuit Judge.

The suit, arising under the Motor Carrier Act of 1935,1 was for damages plaintiff’s ditching machine had sustained while being transported by defendant-appellee.

Instead of declaring generally upon defendant’s obligation as a common carrier of interstate freight with allegations that the machine was in good condition when loaded by the carrier and was in bad condition when delivered by it, plaintiff plead,2 but did not prove, specific acts of negligence. Notwithstanding this specific pleading, however, plaintiff tried its case, and *720the court decided it, as though…