Barnes v. Caulbourne

It is noteworthy that the evidence upon which plaintiff relied tends to show a factual account of the tragic accident materially at variance with the allegations of the complaint; but, on plaintiff’s appeal from an adverse jury verdict, we need not consider whether judgment as of nonsuit should have been entered on the ground of variance between allegation and proof. A plaintiff must make out his case secundum allegata. Whichard v. Lipe, 221 N.C. 53, 19 S.E. 2d 14, 139 A.L.R. 1147; Suggs v. Braxton, 227 N.C. 50, 40 S.E. 2d 470.

Plaintiff’s assignments of error (1-5) challenge excerpts from the…