Lynch v. Winton Borough

Citations

• 54 Pa. Super. 93
• 1913 Pa. Super. LEXIS 18

Syllabus

<p>Negligence —•. Boroughs — Sidewalk —• Pleadings — Variance —Amendment.</p> <p>In an action against a borough to recover damages for personal injuries to a child as a result of falling into an open coal box adjacent to a sidewalk, the original statement of claim averred that in consequence of the box the child who was lawfully traveling on the street in the darkness “unavoidably slipped and fell into said hole or opening.” This was followed by an averment of the borough’s duty to keep the street in reasonably safe condition, and the neglect thereof. An amended statement averred more specifically the fact of notice to the borough, and also the neglect to provide a barrier or rail or other adequate safeguard. The proof showed that the child in order to avoid a group of men standing on the sidewalk unconsciously stepped or stumbled into the open box. Held, (1) that there was no variance in matter of substance between the original statement of claim and the amended one, or between either and the facts established by the proof; (2) that the case was for the jury and (3) that a verdict and judgment for the plaintiff should be sustained.</p>