Lynch v. Winton Borough

Superior Court of Pennsylvania July 16, 1913

Lynch v. Winton Borough, 54 Pa. Super. 93 (1913)

1913 Pa. Super. LEXIS 18

Head, Hendebson, Moebison, Oblady, Postee, Rice

Opinion of the Court

Opinion by

Head, J.,

After a careful examination of the pleadings we are all *97of the opinion that they disclose no variance in matter of substance between the original statement of claim and the amended one, or between either and the facts established by proof on the trial. The evidence offered by the plaintiff to make out her case could not have been rejected by the learned court below on the ground that it tended to establish a different cause of action from the one averred. The learned judge below, in the opinion filed refusing to enter judgment for the defendant n. o. v. and discharging the rule for a new trial, points out clearly the sufficiency of the original statement and the character of the difference between it and the amended one.

There was abundant evidence which, when accepted by the jury, imposed upon the defendant borough the liability recognized and enforced in many cases: O’Malley v. Parsons Boro., 191 Pa. 612; Worrilow v. Upper Chichester Twp., 149 Pa. 40; Weida v. Hanover Twp., 30 Pa. Superior Ct. 424; Councilman v. Galeton Boro., 49 Pa. Superior Ct. 138.

The material issues of fact were submitted to the jury in an adequate and impartial charge, against which no just complaint can be made. Without attempting to review at length the evidence and demonstrate that a case was made out, we deem it sufficient to say we are all of the opinion the case was well tried and that the record exhibits no reversible error.

Judgment affirmed.

Reference

Cited By: 1 case
Status: Published
Syllabus: Negligence —•. Boroughs — Sidewalk —• Pleadings — Variance —Amendment. In an action against a borough to recover damages for personal injuries to a child as a result of falling into an open coal box adjacent to a sidewalk, the original statement of claim averred that in consequence of the box the child who was lawfully traveling on the street in the darkness “unavoidably slipped and fell into said hole or opening.” This was followed by an averment of the borough’s duty to keep the street in reasonably safe condition, and the neglect thereof. An amended statement averred more specifically the fact of notice to the borough, and also the neglect to provide a barrier or rail or other adequate safeguard. The proof showed that the child in order to avoid a group of men standing on the sidewalk unconsciously stepped or stumbled into the open box. Held, (1) that there was no variance in matter of substance between the original statement of claim and the amended one, or between either and the facts established by the proof; (2) that the case was for the jury and (3) that a verdict and judgment for the plaintiff should be sustained.