Opinion
Gen. No. 41,687. (Abstract of Decision.)
Opinion filed November 10, 1941
APPEAL AND ERROR, § 1929 — reversal of verdict and judgment when against manifest weight of evidence. In plaintiff's action for personal injuries sustained when he was struck by right-front headlight of defendant's car as he was alighting from street car at intersection, where plaintiff's corroborated testimony showed that he was struck before he reached curb, but defendant contended that plaintiff had stepped up on curb and fallen backwards, thus striking the headlight, and defendant's answer alleged that plaintiff had alighted from street car in middle of block, rather than at intersection, and that plaintiff had jumped off moving street car, and into defendant's car, variance between pleadings and proof was not saved, since this point was not raised at trial; but where, as in instant case, Appellate Court is of opinion that verdict and judgment are against manifest weight of evidence, Appellate Court has power, and it is it's duty to set verdict and judgment aside, reverse case, and remand same for another trial.
See Callaghan's Illinois Digest, same topic and section number.
Appeal from the Superior Court of Cook county; Hon. WALTER T. STANTON, presiding.
Reversed and remanded. Heard in first division, first district, this court at April term, 1941.
Stanley S. Piotrowski, for appellant;
Edward L. Kowalski, of counsel;
George M. Tearney, for appellee.
"Not to be published in full." Opinion filed November 10, 1941.