Pearce v. Capital Traction Co.

42 App. D.C. 493, 1914 U.S. App. LEXIS 2319

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

Without stopping to consider the objections raised to the language used by the court in instructing the jury, we think an error of law was committed in calling the attention of the jury to the amendment of the declaration and the inferences to be drawn therefrom. No evidence had been adduced on this point, and no comment thereon had been made by counsel. Before advantage could be taken of this discrepancy in plaintiff’s case, it should have been brought out in the trial, and plaintiff given an opportunity to explain the reason for omitting from the original declaration the allegation contained in the amendment. Through this instruction the court injected a new issue into the ease, upon which plaintiff had not been given an opportunity to be heard. This was reversible error.

TH judgment is reversed, with costs, and the cause remanded for a new trial. Reversed and remanded.