The only negligence set out in the declaration, and the only negligence for which she could recover, was the negligence of the defendant in the maintenance and construction of its tracks and its operation of its car, by which negligence the car left the rails; as the jury found that she was not a passenger on the car, she cannot on the pleadings recover. See in this connection Baxter v. Boston Maine Railroad, 217 Mass. 312, 314, and cases cited. The case was argued on the assumption that the finding of the jury did not mean that the plaintiff was not a passenger on the car which was derailed, but meant that the car did not leave the rails.
If the ordering of the verdict was made on the pleadings it was right and the ruling cannot be said to have been wrong. If based upon the pleadings it was right and it does not affirmatively appear that it was not based upon the pleadings. Noyes v. Caldwell, 216 Mass. 525. Baxter v. Boston Maine Railroad, 217 Mass. 312, 314. The stipulation therefore that judgment might be entered for the plaintiff in the sum of $220 "if the case ought to have been submitted to the jury" does not apply.