Opinion
Filed 4 March 1964.
Automobiles 41a — Allegations that plaintiff pedestrian, while waiting to cross a city street was struck by defendant's car, with evidence tending to show that plaintiff pedestrian was crossing the street and had gotten two feet beyond the center line of the street when he was struck, held to warrant nonsuit for variance.
APPEAL by plaintiff from Mintz, J., November 1963 Session of NEW HANOVER.
Isaac C. Wright and Aaron Goldberg for plaintiff.
Poisson, Marshall, Barnhill Williams for defendant.
This is an action to recover damages for personal injuries suffered by plaintiff on 11 May 1962. Plaintiff assigns as error the granting of defendant's motion for nonsuit at the close of plaintiff's evidence.
The complaint alleges that plaintiff "prepared to cross" a street in the City of Wilmington, he observed defendant's automobile approaching from his left and "was afraid to proceed across the street, he came to a complete stop," and while "waiting to cross" was struck and injured by defendant's car. Plaintiff's evidence tends to show that he was crossing the street in the middle of a block to get to his automobile which was parked on the south side of the street, and when he had gotten two feet beyond the center line of the street he turned to see if his wife was following, and while in this position he was struck by defendant's automobile which was proceeding westwardly.
There is a material variance between allegation and proof. Hall v. Poteat, 257 N.C. 458, 125 S.E.2d 924; Bundy v. Belue, 253 N.C. 31, 116 S.E.2d 200. Therefore the judgment of involuntary nonsuit is
Affirmed.