Higgins v. Mayor of Wilmington

Citations

• 19 Del. 356
• 3 Penne. 356
• 51 A. 1
• 1902 Del. LEXIS 2

Syllabus

<p>Writ of Error—Case—Personal Injuries—Pleading—Evidence— Variance—Amendment—Motion to Amend; When Too Late—Discretion of Court—Practice—Directing Verdict for Defendant; When Justifiable.</p> <p>1. Evidence that the plaintiff, in order to escape threatened injury, jumped from a truck and was thereby injured, will not support an allegation in the declaration that because of a dangerous hole or excavation in the street, the plaintiff was violently hurled or thrown to the ground. Neither will such evidence support an allegation to the effect that the plaintiff was forced from the truck to the ground. Forced in such connection means impelled by physical force acting on the body, and not fear of danger, however imminent. In such cases the variance is material and fatal.</p> <p>2. The allowance or refusal of amendments is within the sound discretion of the Court. And an amendment may be refused after a motion for a nonsuit has been argued and the Court has pronounced, or is about to pronounce judgment.</p> <p>3. The trial Court is not bound to submit the case to the jury, but may properly direct a verdict for the defendant, when it appears that under the plaintiff’s declaration the evidence, with all the inferences the jury could justifiably draw from it, is not sufficient to support a verdict for the plaintiff.</p>