South Tacoma Fuel & Transfer Co. v. Tacoma Railway & Power Co.

Citations

• 50 Wash. 686
• 97 P. 970
• 1908 Wash. LEXIS 808

Syllabus

<p>Street Railways — Collision with Team — Pleading and Proof — ■ Variance. — Materiality. In an action for damages to plaintiff’s team, there is no material variance between a complaint alleging that the team was “struck, knocked down and run over by defendant’s cars,” and proof that five or ten minutes after the team was knocked down by one street car, and while one horse was still down, it was struck by another car; as the second collision happened so soon after the other as to be part of the same transaction, and as the remedy of the defendant was by motion against the comprehensive language of the complaint, a variance being immaterial unless a party is misled to his prejudice.</p>