Gettings v. Mahoning & Shenango Ry. & L. Co.

Citations

• 238 Pa. 170
• 86 A. 80
• 1913 Pa. LEXIS 941

Syllabus

<p>Negligence — Street railways — Infants—Pleading—Statement of claim — Variance in testimony.</p> <p>1. In an action of trespass to recover damages for personal injuries, the action of the trial court in overruling a demurrer to the plaintiff’s statement will not he reversed on appeal where it appears that while the statement was not a clear and concise statement of the cause of action it alleged with sufficient clearness that the plaintiff, a child of five years, while crossing a street fell on defendant railway company’s track and was struck by a car run at high and dangerous speed and without warning of its approach; that the street was straight, and that the conductor of the car, who was acting as motorman, saw or by the exercise of proper care would have seen the danger in which the plaintiff was placed in time to avoid the accident. Such averments constitute substantially a charge of actionable negligence as the approximate ^cause of injury.</p> <p>2. In the trial of such an action, a refusal to withdraw the case from the jury because of a variance between the testimony of the plaintiff and his chief witness as to the side of the street from which plaintiff crossed, is proper where this ia unimportant in making out a prima facie case and became important only in the consideration of the defense.</p>