Dellinger v. Charlotte Electric Railway Co.

AlleN, J. The plaintiff alleges that at the time of his injury 'he was using an iron rod to replace the derailed ear on the track, and that he first connected the rod with the car and then with the rail, and he was permitted to prove that he first connected the rod with the rail and then with the car. The defendant insists that this is a material variance, be- ' cause it changed its line of defense and gave it no opportunity to prepare its evidence to meet the case of the plaintiff as proved; that if the evidence of the plaintiff had conformed to *540 bis allegation, it was prepared to show tbat be was acting in disobedience of instructions, and tbat if be bad alleged bis cause of action as be proved it, tbe defendant could bave furnished evidence tbat tbe plaintiff could not bave been injured if be bad connected tbe rod witb tbe rail and tben witb tbe car. There is undoubtedly a variance, but it is not every variance between allegation and proof which will justify granting a new trial. Tbe Revisal, secs. 515 and 516, establishes tbe standard. Section 515: “No variance between tbe allegation in a pleading and tbe proof shall be deemed material unless it has actually misled tbe adverse party to his prejudice in maintaining bis action upon tbe merits. Whenever it shall be alleged tbat a party has been so misled, tbat fact shall be proved to tbe satisfaction of tbe court, and in what respect be has been misled; and thereupon tbe judge may order tbe pleading to be amended upon such terms as shall be just.” Section 516: “Where tbe variance is not material as provided in tbe preceding section, the judge may direct the fact to be found according to the evidence, or may order an immediate amendment without costs.” Commenting on these sections, as contained in The Code of 1883, Merrimon, J., says in Mode v. Penland, 93 N. C., 295: “It may be tbat the court rejected tbe evidence because there was a variance between it and the allegations in the complaint. If so, still the evidence should bave been received, because tbe variance was not such as misled tbe defendant to his prejudice in making bis defense. Tbe substance of the material allegations of the complaint was that the defendant, by the negligence of his agent in the course of tbe business of his agency, injured the plaintiff. Tbe evidence tended to show that the’ agent was not exactly such as alleged, but it went to prove that he was such agent in substance and effect, although he may have been tbe defendant’s partner.” In Asbury v. R. R., 125 N. C., 575, tbe plaintiff alleged tbat tbe defendant caused tbe car to start, and was permitted to prove tbat tbe car started because of a failure to perform some duty, and in Coore v. R. R., 152 N. C., 702, it was held, “There is *541 no material variance between tbe allegations and tbe proof in an action for damages for personal injuries, tbe averments of tbe complaint substantially being that tbe alleged injury was caused by tbe negligent, etc., starting tbe train of defendant railroad company by tbe engineer, without signal or warning, which violently jerked tbe slack out of tbe train, pulled tbe cars farther apart, causing plaintiff to miss bis footing and fall, to bis injury, between tbe cars; and tbe evidence objected to being that ‘the engineer started off at high speed — quick start,’ etc.” Applying these principles, we are of opinion there is no material variance. (1) The act of negligence complained of is not in the fourth paragraph of tbe complaint, but in tbe fifth, and consists in tbe allegation that while engaged in replacing tbe car, tbe current was negligently turned on, and tbe manner in which be was doing tbe work was mere matter of inducement. (2) Tbe defendant denied tbe fourth allegation of tbe complaint, and introduced several witnesses, who were present and knew bow tbe rod was placed. The fair inference is, that if tbe plaintiff bad testified according to bis allegation, that tbe defendant would have proved that be connected tbe rod with tbe rail and then with tbe ear. (3) Tbe defendant was not misled, because it introduced evidence that tbe plaintiff could not have been injured if be placed tbe rod as be testified, and it did not attempt to show, on tbe motion for a new trial or since, that it could produce other evidence to tbe same effect, and if we were to send tbe case back for a new trial, upon tbe ground of a fatal variance, we cannot see, upon an amendment of tbe complaint, that tbe evidence on such trial would not be as it is now presented to us. (4) His Honor substantially found that tbe defendant bad not been misled. Nor do we think there was error in tbe modification of tbe prayers for instruction, by adding tbe element of proximate cause. Tbe theory of tbe plaintiff was, that after tbe derailment be knocked out tbe overhead switch, and that this broke tbe connection and made it safe for him to continue bis work; that be was working 'in full view of tbe motorman and tbe *542 switch was over his head; that while he was doing his work, the motorman knocked in the overhead switch and turned on the current; that he was not disobeying instructions as to the manner of placing the rod, but if he was, the motorman knew it, and that the proximate cause of the injury was the act of the motorman, and there was evidence to support this theory. . If so, it would seem to follow that the use of the language in the prayer for instruction, “but for which the plaintiff would not have been injured,” is itself equivalent to a charge that the negligence of the plaintiff must be proximate, in which event the words, added to the instruction, detracted nothing from its force, for it was the duty of his Honor to tell the jury that the disobedience of instructions must be the proximate cause. In other words, if the defendant instructed the plaintiff to remove the trolley pole before attempting to replace a derailed ear, and he failed to do so, and the plaintiff was working in full view of the motorman, who knew the trolley'pole had not been removed and of the dangerous position of the plaintiff, and the motorman then turned on the current and injured the plaintiff, the real cause of the injury was the act of the motorman. Boney v. R. R., 155 N. C., 95. This view of the case was excluded by both prayers for instruction. We find no error. No error.