Orrealious Conger, as Administrator of the Estate of Gerald Conger, Deceased, Appellant, v. Michael Warren, Respondent

Orrealious Conger, as Administrator of the Estate of Gerald Conger, Deceased, Appellant, v. Michael Warren, Respondent. [MAJORITY] Plantiff appeals from a judgment in favor of the defendant rendered upon a verdict of the jury in a negligence action for a wrongful death, and from the order denying his motion to set aside the verdict - and for a new trial. There was sufficient evidence to support the verdict. Under the proof developed at the trial we may not say- that the trial court abused its discretion in denying plaintiff’s motion to amend his complaint to conform to the proof. The defendant claimed surprise and appellant’s reach therein for a wider latitude of inference by the jury as to the exact place and' position of his intestate at the moment of ■ accident, appears to have had a dubious basis in the proofs as they stood at the close of the trial. And, upon the denial of his motion, plaintiff elected to proceed after indication of the allowance of a motion for the withdrawal of a juror. Order and judgment affirmed, without costs. All concur.