¶1delivered the opinion of the Court.
¶2This suit grows out of an automobile accident. It was brought originally by James Redmond to recover damages which he sustained by reason of being run down by an automobile belonging to Y. P. Carter. Redmond, died, and the suit was revived in .the name of his wife as administratrix. There was a verdict and judgment for plaintiff below, from which Carter has appealed in error. The constitutionality of a statute is involved^ and the court of civil appeals, to which the appeal in error had been taken, transferred the cause to this court.
¶3*260■James Redmond was a section foreman employed by the' Louisville & Nashville Railroad Company, and with his gang was working on the railroad at a point where it is crossed by one of the public roads of Montgomery county. While so engaged he received the injuries for which suit was brought from an automobile owned by plaintiff in error, in which plaintiff in error and his daughter were riding at the time.
¶4It is said that there is no evidence in the record tending to show that the deceased died from the injuries sustained in this accident. It is likewise urged that no negligence, either statutory or common-law negligence, can be ascribed to plaintiff in error on the facts of this case.
¶5Inasmuch as the case must be .reversed on another ground, it would not be desirable to go into the facts. We may observe, however, that in our opinion there is evidence from which it may be concluded that Redmond died as result of the injuries received as above, and there is evidence that the automobile was being operated in excess of the statutory speed limit, and there is evidence that the machine was being negligently operated, applying common-law rules.
¶6As heretofore stated, this suit was originally brought by James Redmond. On the day after the suit was brought Redmond died. Mrs. Mary S. Redmond then appeared in court, produced letters of administration, and had the suit revived in her name as such adminis-tratrix, to stand revived “in the same plight and condition as before the death of plaintiff.” Later Mrs. Redmond, as administratrix, filed her declaration, in *261which she claimed damages, not only snch as were suffered by the deceased — pain, suffering, loss of time, doctor’s bills, etc. — but claimed compensation under the statute for herself and children for the wrongful death of the deceased.
¶7It is insisted that inasmuch as the suit was originally brought merely to recover the damages sustained by James Redmond, and that inasmuch as it was revived to stand in the same plight and condition, Mrs. Redmond as administratrix, cannot recover in this particular suit the damages sustained by the statutory beneficiaries consequent to the wrongful tilling of the deceased.
¶8This question cannot be made upon this record. Such an argument suggests a variance between the writ and the declaration. The declaration clearly averred and sought recovery for damages for the wrongful killing) of J ames Redmond, as well as damages sustained by him, and to this declaration the defendant below interposed pleas in bar, to wit, the general issue and a plea of contributory negligence.
¶9Granting the argument of plaintiff in error that the order of revivor had the effect of limiting recovery to the damages sought in the original writ,.then the suit stood as if brought by Mrs. Redmond, as administratrix, to recover for the injuries inflicted upon the .deceased. The declaration, however, went beyond this, as we have seen, without objection from the defendant below.
¶10A variance between pleading and process is technical in character, and defendant must avail himself promptly of any objection he intends to interpose. Under all the authorities it is too late to take advantage of such a *262variance after pleading to the merits. 22 Enc. Pl. Pr., 523; McKenna v. Fisk, 1 How., 241, 11 L. Ed., 117.
¶11In the case before ns this objection was not made by any pleading until after verdict and judgment. It is true that certain requests were offered by the defendant below, by which he sought to have the trial judge limit the damages to those sustained by James Redmond. A request for instructions is not a pleading, however, and the alleged variance was therefore not brought to the attention of the trial court by any motion or pleading, until the motion for a new trial was made. Our own cases have settled the law that such an objection comes too late when made for the first time after judgment. Payton v. Trigg, 4 Hayw., 250; Johnson v. Planters’ Bank, 1 Humph., 77.
¶12By chapter 36 of the Acts of 1917, the drivers of automobiles, crossing a railroad track at grade on public roads were required to come to a full stop at a distance of not less than 10 nor more than 50 feet from the nearest rail of said track before crossing.
¶13The trial judge instructed the jury that, if they found that the defendant below failed to observe this statute, and that as a proximate result of such failure the plaintiff below was injured liability would follow. A request was tendered by the defendant below, asking that the jury be instructed that this statute had no hearing on the case before them, which request was refused by the court.
¶14We think that the circuit judge erred in giving this instruction, and erred in refusing to give in charge the request just mentioned.
¶15*263An. examination of chapter 36 of the Acts of 1917 satisfies ns that it was intended to prevent collisions of railroad trains and automobiles at grade crossings, and to protect those riding on railroad trains and in au- . tomobiles. It was not enacted for the protection of ' those 'using the public highway, either at the point where the highway happened to cross a railroad track at grade or elsewhere. Persons traveling on the highway are protected by the common law and also by chapter ■173 of the Acts of 1905.
¶16The Act of 1917 does not have such persons within its purview.
¶17Such being our construction of chapter 36 of the Acts of 1917, it follows that the plaintiff below was not entitled to base his action upon any violation thereof.
¶18We have considered this question fully in a recent case, and there said:
‘In order to found an action on the violation of a statute, or ordinance, . . . the person suing must be such a person as is within the protection of the law and intended to be benefited thereby. ... We think that one not a beneficiary of a statute may neither base an action nor a defense on a violation thereof. Unless an individual be within the province of a statute, its violation is no breach of duty to him.” Chattanooga Ry. & Lt. Co. v. Bettis, 139 Tenn., 332, 202 S. W., 70.
¶19The plaintiff in error has properly challenged the action of the trial court,with reference to this statute in this court. He did not pretend to have-stopped his car on approaching the crossing at which Redmond was *264hurt. Therefore such an instruction from the trial judge practically necessitated a verdict against him. With this statute out of the way his liability depended on controverted issues of fact. The error he complained of was therefore material, and affected the result.
¶20Having taken the view that chapter 36 of the Acts of 1917 has no application to this case, it becomes unnecessarily to pass on its validity in this suit.
¶21For the reason stated, the judgment below will be reversed, and this case remanded for a new trial.