
    JACOB NEUTZE v. ATLANTIC CITY RAILROAD COMPANY.
    Argued June 8, 1904
    Decided November 7, 1904.
    This court will not, upon a rule to show cause, grant a new trial merely because of a variance between the negligence alleged and the negligence proved, when the variance was not brought to the attention of the trial judge, and might have been cured by an amendment.
    On rule to show cause.
    Before Gusemere, Chief Justice, and Justices Garrison and Sivayze.
    For the plaintiff, Ralph W. F. Donges and John W. Wescott.
    
    For the defendant, J. Willard Morgan and Charles V. D. Joline.
    
   The opinion of the court was delivered by

Swayze, J.

At the close of the plaintiff’s case, a motion was made to nonsuit, on two grounds — first, that the plaintiff has failed to show any negligent conduct on the part of the defendant company; second, because the plaintiff was guilty of contributory negligence.

Upon the close of the whole case, a motion was made to direct a verdict for the defendant on the same grounds.

We think the evidence on these points presented a case for the jury, and we cannot say that the damages are so large as to justify us in setting'aside the verdict.

It is now argued that there was such a variance between the negligence alleged in the declaration and the negligence proved that the nonsuit should have been granted.

There can be no question that such a variance exists, and if the question had been presented to the trial court an amendment would have been necessary. The question was not, however, presented to the trial court, as will appear from the grounds of the motion as stated by counsel and quoted verbatim above. We ought not, therefore, to review its action. The well-established rule as to bills of exception has been held applicable to a review upon a rule to show cause. Jackson, Administrator, v. Consolidated Traction Co., 30 Vroom 25. And this case has been cited with approval in the Court of Errors and Appeals, in Wallace v. Leber, 36 Id. 195, 198.

The rule should be discharged.  