Talley v. Harriss Granite Quarries Co.
Supreme Court of North Carolina
Civil actioN, tried before Long, J., at November Term, 1916, of BoCKINGHAM. ■ Plaintiff alleged that on 10 September, 1915, he was an employee of the defendant quarries company and was called upon by the foreman to assist in removing a heavy cable, attached to a smokestack, to a new anchorage, and in order to do so properly it was necessary to carry it around a pit about 150 feet in depth.
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Civil actioN, tried before Long, J., at November Term, 1916, of BoCKINGHAM. ■ Plaintiff alleged that on 10 September, 1915, he was an employee of the defendant quarries company and was called upon by the foreman to assist in removing a heavy cable, attached to a smokestack, to a new anchorage, and in order to do so properly it was necessary to carry it around a pit about 150 feet in depth. He was instructed to take hold of the cable, with another man, at the end of it furtherest from the smokestack, and eight or ten other men were ordered to grapple the cable at a place between the plaintiff…
1Opinion of the Court
Walker, J.,
after stating tbe case: It has so often been said as to have grown into an axiom that proof without allegation is as unavailing as allegation without proof. There must, under tbe old or new system of pleading, be allegata and probata, and tbe two must correspond with each other. When tbe proof materially departs from tbe allegation, there can be-no recovery without an amendment. McKee v. Lineberger, 69 N. C., 217; Brittain v. Daniels, 94 N. C., 781; Faulk v. Thornton, 108 N. C., 314; Pendleton v. Dalton, 96 N. C., 507; Hunt v. Vanderbilt, 115 N. C., 559; Green v. Biggs, 167 N. C.,…
2Cases cited16 opinions
- Blackmore v. . WindersSupreme Court of North Carolina · 1907
- Brewer v. . WynneSupreme Court of North Carolina · 1911
- McNeill v. Atlantic Coast Line RailroadSupreme Court of North Carolina · 1914
- McLaurin v. . CronlySupreme Court of North Carolina · 1884
- Witsell v. . R. R.Supreme Court of North Carolina · 1897
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3Cited by23 opinions
- Whichard v. LipeSupreme Court of North Carolina · 1942
- Whichard v. . LipeSupreme Court of North Carolina · 1942
- Jackson Ex Rel. Jackson v. McBrideSupreme Court of North Carolina · 1967
- Morgan v. . BankSupreme Court of North Carolina · 1925
- Morgan v. Citizens BankSupreme Court of North Carolina · 1925
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