District of Columbia v. Donaldson

38 App. D.C. 259, 1912 U.S. App. LEXIS 2117

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

Appellee, Laura V. Donaldson, plaintiff below, secured a judgment against the District of Columbia for damages for personal injuries resulting from a fall. In her declaration she specifically charged that the accident occurred on a sidewalk where defendant had negligently left a “precipitous descent, or incline, unpaved, ungraded, and unguarded, and dangerous to persons passing” thereon. The evidence disclosed that the accident did not occur on the sidewalk, but on a path leading from the sidewalk across the parking, and temporarily used by the public during a period of snow and ice, to avoid passing over the place described in the declaration. The variance between the allegations and the proof is fatal. The motion of defendant for an instructed verdict in its favor should have been granted. The judgment is reversed with costs, and it is so ordered.

Reversed.