Mr. Presiding Justice Higber
delivered the opinion of the court.
2. Constitutional law, § 176*—when direction of verdict deprived of right to trial by jury. To direct a verdict, where the evidence is conflicting and where plaintiff’s evidence, if true, is sufficient to sustain a verdict, involves a determination by the court of the question of the preponderance of the evidence, and is a violation of plaintiff’s constitutional right of trial hy jury. 3. Carriers, § 456*—when variance between declaration and proof immaterial. A variance between a declaration in an action by a passenger against a street railroad for damages for personal injuries alleging that an accident occurred at a named street and avenue and proof that it occurred “somewhere around” such street and avenue is merely technical and is not of such importance as to defeat a recovery. 4. Appeal and error, § 438*—when question of variance must be raised. The question of variance cannot be raised for the first time in the Appellate Court. 5. Carriers, § 456*—when averment of injury divisible. In an action to recover for personal injuries to a passenger, where plaintiff alleged that by reason of the excessive speed of a car while rounding a curve she was thrown against the side of the car and trampled on, it is not necessary, to entitle plaintiff to recover, that she prove that she was trampled on, the injury alleged being divisible. 6. Torts, § 29*—when plaintiff need only prove part of charge. In an action of tort, if the averment be divisible, plaintiff may prove part of his charge if he have sufficient evidence. Free access — add to your briefcase to read the full text and ask questions with AI