Derragon v. Village of Rutland
Supreme Court of Vermont
Action on the case for negligently permitting the overflow of sewage on the land adjoining the plaintiff’s premises, whereby the plaintiff was damaged. Trial by jury, September Term, 1885, Veazey, J., presiding. Verdict directed for the defendant. The objection of variance was not taken soon enough; it should have been taken when the evidence was offered; it cannot be taken advantage of after the evidence is closed.
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Action on the case for negligently permitting the overflow of sewage on the land adjoining the plaintiff’s premises, whereby the plaintiff was damaged. Trial by jury, September Term, 1885, Veazey, J., presiding. Verdict directed for the defendant. The objection of variance was not taken soon enough; it should have been taken when the evidence was offered; it cannot be taken advantage of after the evidence is closed. Roberts v. Graham, 6 Wall. 578; Ammel v. Noonar, 50 Vt. 402. No fatal variance appears in the case. Allen v. Jones, 20 Conn. 47; 16 Pick. 359; Gates v. Bowker, 18 Vt. 23; Steele…
1Opinion of the Court
The opinion of the court was delivered by
Walker, J.
At the close of the evidence, the defendant moved the court to direct a verdict for the defendant.
“First, because there is a material variance between the declaration and the evidence, in this: that the declaration alleges as a cause of action damages said to have been. *131caused by a negligent construction and failure to repair a village sewer, built under a vote of the village in 1872, while the proofs are wholly directed to the sewer built in 1882, and no evidence has been introduced tending to show any liability, on the part of the village,…
2Cases cited1 opinion
- Denison v. TysonSupreme Court of Vermont · 1845
3Cited by10 opinions
- Wabash Western Railway Co. v. FriedmanIllinois Supreme Court · 1892
- Carlin v. City of ChicagoIllinois Supreme Court · 1914
- Slack v. BraggSupreme Court of Vermont · 1910
- Chicago City Railway Co. v. McMeenIllinois Supreme Court · 1903
- Clark v. Employers' Liability Assurance Co.Supreme Court of Vermont · 1900
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