Dellinger v. Charlotte Electric Railway Co.
Supreme Court of North Carolina
Appeal by defendant from Lyon, J., at April Term, 1912, of MbckleNbueg. This action is to recover damages for personal injuries caused, as the plaintiff alleges, by the negligence of the defendant. The plaintiff was in the employment of the defendant as a conductor, and was engaged at the time of his injury in replacing a derailed car on the track.
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Appeal by defendant from Lyon, J., at April Term, 1912, of MbckleNbueg. This action is to recover damages for personal injuries caused, as the plaintiff alleges, by the negligence of the defendant. The plaintiff was in the employment of the defendant as a conductor, and was engaged at the time of his injury in replacing a derailed car on the track. The plaintiff, among other things, alleged in his complaint: “(4) That after the derailment of the car as aforesaid, and after the electric current and voltage used in the opération of the said car had been turned off by the motorman in charge of…
1Opinion of the CourtAlleN, J.
The plaintiff alleges that at the time of his injury 'he was using an iron rod to replace the derailed ear on the track, and that he first connected the rod with the car and then with the rail, and he was permitted to prove that he first connected the rod with the rail and then with the car.
The defendant insists that this is a material variance, be- ' cause it changed its line of defense and gave it no opportunity to prepare its evidence to meet the case of the plaintiff as proved; that if the evidence of the plaintiff had conformed to bis allegation, it was prepared to show tbat be was…
2Cases cited4 opinions
- Boney v. . R. R.Supreme Court of North Carolina · 1911
- Asbury v. Charlotte Electric Railway & Power Co.Supreme Court of North Carolina · 1899
- Mode v. . PenlandSupreme Court of North Carolina · 1885
- Coore v. Seaboard Air Line Railway Co.Supreme Court of North Carolina · 1910
3Cited by1 opinion
- Whichard v. LipeSupreme Court of North Carolina · 1942