
    EVIDENCE — TRIAL.
    [Hamilton (1st) Circuit Court,
    January, 1911.]
    Giffen, Smith, and Swing, JJ.
    Alva Green v. C., L. & A. Traction Co.
    Variance in Plaintiff's Testimony Insufficient Ground for an Instructed Verdict.
    Variance in the testimony of plaintiff in an action for personal injuries on direct and cross-examination Hs not, taken alone, sufficient ground for a nonsuit.
    
      T. B. Snyder and L. T. Michie, for plaintiff in error.
    
      Stanley Shaffer; for defendant in error.
   SMITH, J.

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 nonsuit.

“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. Railway, 38 Ohio St. 389.

So long as there is evidence tending to prove the whole issue the case should be submitted to the jury. Ellis v. Insurance & Tr. Co. 4 Ohio St. 628 [64 Am. Dec. 610].

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.

Giffen and Swing, JJ., concur.  