City of Mattoon v. Fallin

Citations

• 113 Ill. 249
• 1885 Ill. LEXIS 686

Syllabus

<p>1. Appeal—reviewing facts. In an action against a city for an injury received in consequence of negligence in keeping its sidewalks in repair, the time and place of the accident, the manner in which it occurred, the -condition of the sidewalk at the time, the alleged negligence on the part of the city, and the degree of care which the plaintiff exercised, are all questions of fact, with which this court has nothing to do, except in respect to the ruling of the trial court as to their admission in evidence, or for the purpose of passing upon the instructions.</p> <p>2. Practice—as to time and mode of talcing advantage of a variance. In case of a variance between the allegations and proofs of the plaintiff, the defendant should object to the evidence when offered, or move to exclude the same when it is all in, or ask the court to instruct the jury to find for the defendant, so as to afford an opportunity of removing the objection by amendment; and if he does not, the variance can not be urged as a ground of reversal.</p>