Lynch v. Winton Borough

Opinion by Head, J., After a careful examination of the pleadings we are all [97] of the opinion that they disclose no variance in matter of substance between the original statement of claim and the amended one, or between either and the facts established by proof on the trial. The evidence offered by the plaintiff to make out her case could not have been rejected by the learned court below on the ground that it tended to establish a different cause of action from the one averred. The learned judge below, in the opinion filed refusing to enter judgment for the defendant n. o. v. and discharging the rule for a new trial, points out clearly the sufficiency of the original statement and the character of the difference between it and the amended one. There was abundant evidence which, when accepted by the jury, imposed upon the defendant borough the liability recognized and enforced in many cases: O’Malley v. Parsons Boro., 191 Pa. 612; Worrilow v. Upper Chichester Twp., 149 Pa. 40; Weida v. Hanover Twp., 30 Pa. Superior Ct. 424; Councilman v. Galeton Boro., 49 Pa. Superior Ct. 138. The material issues of fact were submitted to the jury in an adequate and impartial charge, against which no just complaint can be made. Without attempting to review at length the evidence and demonstrate that a case was made out, we deem it sufficient to say we are all of the opinion the case was well tried and that the record exhibits no reversible error. Judgment affirmed.