Tuggle v. Waller

1. There was not a fatal variance between the allegations and the proof. It is true that there are no allegations in the petition with reference to trying to escape injury by grasping the steering wheel, etc., but there was no objection to the testimony on the ground that it did not sustain the allegations of the petition; so, conceding but not deciding that such objection would have been good, the allegations in the petition to the effect that the plaintiff could not escape from the path of the automobile and thus avoid injury did not relate to the negligence of the defendant, but related to…