
    No. 870
    SUTHERLAND v. CLEVE. RY. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8446.
    Decided Nov. 7, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    70. ADMENDMENTS. — 923. Pleadings.— 400. Discretion. — Refusal of trial court to permit amendment to conform to evidence and to conform to ruling of Supreme Court, held abuse of discretion.
    Error to Municipal Court.
    Judgment reversed.
    Gott, Bloomfield & Orr, Cleveland, for Sutherland.
    Squire, Sanders & Dempsey, Cleveland, for Cleve. Ry. Co.
   FULL TEXT

VICKERY, J.

This ease comes into this court on a petition in error to the Municipal Court of the City of Cleveland, and it is the second time this case has been before this court. It was affirmed by this court and reversed in the Supreme Court because the doctrine of res ipsa loquitur was not raised in the case. After the Supreme Court had reversed the lower court and this court, it went back for a new trial in the trial court, whereupon the defendant’s lawyer objected to the introduction of any testimony unless the petition was amended to comply with the ruling of the Supreme Court. Whereupon the plaintiff’s counsel offered an amendment which, in his judgment, was in accordance with the ruling of the Supreme Court. The court took this under advisement, but finally refused to permit him to amend either to conform to the evidence or to file an amendment in the first instance and then upon motion of counsel for defendant, directed a verdict against the plaintiff, and it is to reverse that finding of the court that error is again prosecuted to this court.

We think the judgment should be and is revel sed because of the abuse of discretion of the trial court in refusing to permit the plaintiff to amend in accordance with the written amendment that was proffered.

The judgment will, therefore, be reversed, and the case remanded.

(Sullivan, PJ., and Levine, J., concur in judgment.)  