Schongar v. Montgomery Ward & Co. , 271 A.D.2d 912 ( 1946 )

The plaintiff wife sustained personal injuries when, while a customer in defendant’s store, she came into collision with a wheeled hand truck operated by defendant’s employee. The accident occurred in the intersection of aisles. The sole charge of negligence laid in the complaint was that the truck was operated negligently at the time in question. There was no motion to conform the pleadings to the proof. Despite this the court in its charge to the jury enlarged and added to the specifications of negligence by submitting to the jury as an initial question whether or not the defendant exercised reasonable care in using the aisle for the operation of the truck, and this regardless of the manner in which it was operated. To this the defendant duly excepted. We feel that the court’s submission of such question constituted material and prejudicial error. Moreover, we have grave doubts that even if the count of negligence thus added by the court’s instruction had been laid in the complaint, it would, under the evidence given, have been sound as a matter of law. The judgment appealed from is reversed on the law and the facts and a new trial ordered, with costs to abide the event. All concur.