Magdalena Scheu, Respondent, v. Union Railway Company of New York City, Appellant

Magdalena Scheu, Respondent, v. Union Railway Company of New York City, Appellant. First Department, April 6, 1906. Negligence — complaint alleging injury to passenger while seated caused by the high speed of car in rounding curve at variance with proof of injury while alighting. When the complaint in an action based on the negligence of the defendant - alleges in substance that the plaintiff, while seated in defendant’s car, was thrown from her seat to the ground by reason of the defendant propelling its car at a dangerous and high rate of speed while rounding a curve, the plaintiff cannot be permitted to recover on proof that she was thrown while preparing to alight, after having signaled the conductor to stop, when the speed of the car had slackened. Such proof is at variance with the negligence alleged. A party cannot allege one proximate cause of injury and prove another, if proper objection be made, unless an amendment be allowed. Ingraham, J., dissented, with memorandum. Appeal by the defendant, the Union Eailway Company of New York city, from a judgment of the Supreme Court in favor of the plaintiff, entered in the -office of the clerk of "the county of ISTew York on the 28th day of June, 1905, upon the verdict of a jury for $3,500, and also from an order entered in said clerk’s office on the 14th. day of July, 1905, denying the defendant’s motion for a new trial made upon the minutes. Anthony J. Ernest, for the appellant. Alfred J. Talley, for the respondent. [MAJORITY — Houghton, J.:] Houghton, J.: We are constrained to reverse this judgment because the plaintiff was permitted to recover upon proof of a state of facts wholly at variance with the negligent acts which she alleged in her complaint. The negligence which she pleaded was that, while riding as a passenger, and seated, the defendant propelled its car at such a_ dangerous and high rate of speed around a curve that she was thrown from her seat to the ground, sustaining the injuries of which she complains. Against the timely and repeated objection of the defendant that the proof was at variance with the pleading, .she was permitted to show that she notified the conductor of her desire to alight, and that he gave the signal for the car to stop, and that as the speed slackened and as she. was preparing to alight,, the -car gave a sudden and violent' jerk, breaking her hold and throwing her to the ground. . There is a wide difference between the negligence of running a car at such a reckless speed as to hurl passengers from their seats, and that, of not permitting a passenger a. reasonable opportunity to alight after signal which has been complied with. The one in no sense involves the other. A party having chosen and plead the acts for which he seeks to hold his adversary in damages, must abide by his allegations unless relieved by amendment. In an action brought to ’recover damages because of negligence^ the' plaintiff cannot allege in his complaint one thing as the proximate cause of his injury, and upon the trial, if objection be made, prove another to have been such proximate . cause. ' (Woolsey v. Trustees of Ellenville, 69 Hun, 489; Newman v. Pennsylvania R. R. Co., 33 App. Div. 171 ; Hoffman v. Third Ave. R. R. Co., 45 id. 586; Davis v. Broadalbin Knitting Co., 90 id. 567.) And where such variance exists and 'timely protest 'is made, and no amendment is asked for or allowed, a judgment in plaintiff’s favor cannot be sustained on appeal, notwithstanding defendant was probably not misled. (Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420; Northam v. Dutchess Co. Mut. Ins. Co., 177 id. 73 ; Ray v. United Traction Co., 96 App. Div. 48.) In addition to the objections arid motions Which the defendant made to the receipt of proof that plaintiff was injured while she was attempting to alight from the.ear which was being brought to-a stop to permit her so to do, the defendant requested the. court to charge that there could be no recovery by reason of the failure of the defendant to afford the plaintiff a reasofiable -opportunity to alight, because the complaint contained no such allegation, and such request was- refused. There was -no proof that the plaintiff was thrown from -her. seat to the ground by-reason of the high rate of speed of the car around fe curve, and she, therefore, failed to sustain her allegation that-such act brought about her injuries. She was permitted to recover upon. proof of acts not set forth in her complaint nor embraced within, its allegations. No amendment was asked, for or allowed, and the judgment cannot be permitted to stand. The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. O’Brien, P. J., McLaughlin and Clarke, JJ., concurred; Ingraham, J., dissented. [DISSENT — Ingraham, J. (dissenting):] Ingraham, J. (dissenting): I do -not think that there was such a variance between the complaint and the proof as justified a reversal of this judgment. The testimony is entirely consistent, as I view it, with the allegations of the complaint, that the plaintiff was thrown from the car while rounding the curve after the speed had been accelerated as the car was approaching the curb. ■ The defendant does not claim that it was surprised upon the trial by the variance between the complaint and the proof. I think the evidence was sufficient to sustain the recovery and that the judgment should be affirmed. Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order filed.