Williams v. Creighton

(after stating the case as above).

The record does not affirmatively show the theory upon which the court acted in sustaining the motion of the Creightons. Appellant assumes it was because of the variance between his pleading that he was struck by both cars while the evidence shows he was struck by the Abernathy car only. This is the theory upon which the Creightons seek to sustain the court’s action, and we can conceive of no other reason which would have prompted such action.

The gist of the action was the specific acts of negligence charged against Abernathy and Mrs. Creighton and the…