Dougherty v. Davis

Citations

• 51 Pa. Super. 229
• 1912 Pa. Super. LEXIS 208

Syllabus

<p>Negligence — Automobiles—Pleading—Evidence—Allegata and probata — Contributory negligence.</p> <p>1. In an action to recover damages for personal injuries caused by an automobile, where the plaintiff’s statement charges the defendant with recklessly, carelessly and negligently operating and running his machine at a high rate of speed contrary to the laws of the commonwealth, there is no fatal variance between the allegata and the proof, where there is testimony to show that the defendant negligently operated his machine at the time of the accident, although at such time he was not running it at a high rate of speed.</p> <p>2. The allegata from which the proofs must not materially vary and with which they must be consistent, are those averments of fact contained in the plaintiff’s statement of claim, which if substantiated, would entitle him to recover. If the statement contains other allegations of fact not essential to the cause of action sued upon, the plaintiff is not bound to prove them, and a failure to do so will not constitute a fatal variance which will preclude recovery if the essential averments have been duly established.</p> <p>3. Where a person in attempting, without fault, to cross a highway, is placed in a perilous position by the driver of an automobile, he cannot be held to the same degree of deliberation and coolness as if there had been no negligent action on the part of the driver of the automobile.</p>