Negligence — Railroads — Pleadings — Allegata and probata — Change of cause of action — Damages — Different measure.
1. In an action against a railroad company for injuries to a minor struck by a locomotive, there is a material variance between the allegata and probata, where the statement of claim avers that plaintiff was on the track or in close proximity to it without stating that she was a trespasser and that the engineer saw or should have seen plaintiff, but negligently ran her down, while the evidence showed that plaintiff was struck while lawfully upon a permissive public crossing. [325, 326]
2. In such case the measure of damages under the statement was merely to avoid wanton or wilful negligence, while under the facts as shown by the evidence it was increased to that of care in avoiding ordinary negligence. [327]
PER CURIAM, January 5, 1931:
The order of the court below discharging plaintiffs' rule for leave to amend the statement of claim in this action is clearly correct, and the judgment entered thereon is affirmed on the opinion of the learned court below.
Judgment affirmed.