Scheu v. Union Railway Co.

98 N.Y.S. 278 | N.Y. App. Div. | 1906

Lead Opinion

Houghton, J.:

We are constrained to reverse this judgment because the plaintiff was permitted to recover upon proof of a state of facts wholly at variance with the negligent acts which she alleged in her complaint.

The negligence which she pleaded was that, while riding as a passenger, and seated, the defendant propelled its car at such a_ dangerous and high rate of speed around a curve that she was thrown from her seat to the ground, sustaining the injuries of which she complains.

Against the timely and repeated objection of the defendant that the proof was at variance with the pleading, .she was permitted to show that she notified the conductor of her desire to alight, and that he gave the signal for the car to stop, and that as the speed slackened and as she. was preparing to alight,, the -car gave a sudden and violent' jerk, breaking her hold and throwing her to the ground.

. There is a wide difference between the negligence of running a car at such a reckless speed as to hurl passengers from their seats, and that, of not permitting a passenger a. reasonable opportunity to alight after signal which has been complied with. The one in no sense involves the other. A party having chosen and plead the acts for which he seeks to hold his adversary in damages, must abide by his allegations unless relieved by amendment. In an action brought to ’recover damages because of negligence^ the' plaintiff cannot allege in his complaint one thing as the proximate cause of his injury, and upon the trial, if objection be made, prove another to have been such proximate . cause. ' (Woolsey v. Trustees of Ellenville, 69 Hun, 489; Newman v. Pennsylvania R. R. Co., 33 App. Div. 171 ; Hoffman v. Third Ave. R. R. Co., 45 id. 586; Davis v. Broadalbin Knitting Co., 90 id. 567.) And where such variance exists and 'timely protest 'is made, and no amendment is asked for or allowed, a judgment in plaintiff’s favor cannot be sustained on appeal, notwithstanding defendant was probably not misled. (Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420; Northam v. Dutchess Co. Mut. Ins. Co., 177 id. 73 ; Ray v. United Traction Co., 96 App. Div. 48.)

In addition to the objections arid motions Which the defendant made to the receipt of proof that plaintiff was injured while she was attempting to alight from the.ear which was being brought to-a stop to permit her so to do, the defendant requested the. court to charge that there could be no recovery by reason of the failure of the defendant to afford the plaintiff a reasofiable -opportunity to alight, because the complaint contained no such allegation, and such request was- refused.

There was -no proof that the plaintiff was thrown from -her. seat to the ground by-reason of the high rate of speed of the car around fe curve, and she, therefore, failed to sustain her allegation that-such act brought about her injuries. She was permitted to recover upon. proof of acts not set forth in her complaint nor embraced within, its allegations. No amendment was asked, for or allowed, and the judgment cannot be permitted to stand.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

O’Brien, P. J., McLaughlin and Clarke, JJ., concurred; Ingraham, J., dissented.

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Dissenting Opinion

Ingraham, J. (dissenting):

I do -not think that there was such a variance between the complaint and the proof as justified a reversal of this judgment. The testimony is entirely consistent, as I view it, with the allegations of the complaint, that the plaintiff was thrown from the car while rounding the curve after the speed had been accelerated as the car was approaching the curb. ■ The defendant does not claim that it was surprised upon the trial by the variance between the complaint and the proof.

I think the evidence was sufficient to sustain the recovery and that the judgment should be affirmed.

Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.