McLean v. A. Schoenhut Co.

Citations

• 225 Pa. 100
• 73 A. 1058
• 1909 Pa. LEXIS 612

Syllabus

<p>Negligence — Master and servant — Failure to instruct — Defective machine — Pleading—V ariance.</p> <p>1. In an action by a boy sixteen years old against his employer to recover damages for injuries sustained while operating a stamping machine, where the only negligence alleged in the case was failure on the part of the defendant adequately to instruct the plaintiff, it is reversible error to permit the case to go to the jury on the question of a defective machine.</p> <p>2. In such a case the burden is on the plaintiff not only to charge the particular negligence complained of, but to prove it by sufficient testimony. The parties are bound by the pleadings, and the courts cannot disregard them. It will not do to allege one ground upon which to sustain a recovery of damages for failure to perform a duty, and at the trial prove, or attempt to prove, failure to perform a different kind of duty, the breach of which was not alleged.</p>