Stewart v. Scharff

Opinion by

Wright, J.,

We are here concerned with a trespass action resulting from a collision between automobiles of Clyde F. Stewart and Fred A. Scharff. After verdicts for the plaintiffs, Stewart and his wife, the lower Court refused defendant Scharff’s motion for judgment n.o.v. and ordered a new trial. Scharff has appealed from the refusal of his motion, contending that there was a fatal variance between the allegata and the probata.

The complaint makes inter alia the following averments : “Third: On or about the 12th day of February, 1950, wife plaintiff was operating her automobile in a…