
    INSUFFICIENT GROUND FOR AN INSTRUCTED VERDICT.
    Circuit Court of Hamilton County.
    Alva Green v. C., L. & A. Traction Company.
    Decided, January, 1911.
    
      Negligence — Pony Cart in Collision with Traction Oar — Variance in Plaintiff’s Testimony.
    
    Variance in the testimony of a plaintiff on direct and cross-examination is not, taken alone, sufficient ground for a non-suit.
    
      Plaintiff, a fourteen year old girl, was injured by a collision with a car of defendant company while driving a pony cart in the village of North Bend. She claims permanent injury.
    
      T. E. Snyder and T. L. Michie, for plaintiff in error.
    
      Stanley Shaffer, contra.
    Smith, J.; Gteeen, P. J., and Swing, J., concur.
   While the evidence of the plaintiff in error upon the direct examination was in variance with that .given by him upon his cross-examination, yet we do not think this discrepancy would entitle defendant in error to a non-suit.

‘‘A motion to arrest the testimony from the jury and render a judgment against the party on whom the burden of proof rests, involves an admission of all the facts which the evidence tends to prove, and presents only a question of law for the court; but if there, is evidence tending to prove each material fact put in issue, and indispensable to a recovery, it should be submitted to the jury under proper instructions.” Dick v. Railroad Co., 38 O. S., 389.

So long as there is evidence tending to prove the whole issue the case should be submitted to the jury. Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 O. S., 628.

As the court therefore erred in instructing the jury to return a verdict for the defendant in error at the close of plaintiff in error’s testimony, the judgment thereon is reversed and a new trial awarded.  