Herrlein v. City of McKeesport

Citations

• 247 Pa. 277
• 93 A. 319
• 1915 Pa. LEXIS 821

Syllabus

<p>Negligence — Municipalities—Highways—Dangerous condition — ■ Case for jury — Pleading—Evidence—Variance—Waiver.</p> <p>1. The case was properly submitted to the jury in an action to recover from a municipality for injuries sustained by plaintiff in consequence of stepping into a hole in the footway of ■ a bridge forming part of a public highway, which he was using after dark and of the unsafe condition of which he was ignorant, where it appeared that the hole had been caused by the rotting of the planking which condition had existed for a sufficient time to charge defendant with constructive notice thereof.</p> <p>2. The failure to raise the objection that there was a variance between the allegata and probata at the trial of such a case will be regarded as a waiver of such alleged variance.</p>