
    No. 548
    VALLEY VIEW (VIL.) v. BENNINGTON, Erx.
    No. 19701.
    Supreme Court.
    Motion to certify record.
    Dock. March 20, 1926,
    4 Abs. 208.
    225. CHARGE TO JURY. — Is it within the province of a court to inject matters into a charge which were not raised in the petition?
    851. NOTICE. — Must notice of defective condition of a Village roadway be actual, or may it be constructive?
    Attorneys — E. W. McGraw, for Valley View; W. J. Corrigan, for Bennington; all of Cleveland.
   It appears from the evidence in this case that Roy Bennington, while driving upon a street in Valley View Village, drove into a hole in the pavement of said street causing his machine to overturn, killing him in the accident.

Sadie Bennington, executrix of his estate, brought this action in Cuyahoga Common Pleas to recover damages for the death of decedent.

The executrix contends that althuogh no actual notice of the defective condition of the street was given the village it nevertheless had constructive notice of such defects and further contends that such constructive notice was sufficient to charge said village for an action in damages.

Counsel for the village requested court to charge that before a verdict could be rendered against the village notice of the existence of the defect on the road causing the injury must be proven and that such notice must be actual or implied from the long continued existence of such defect. This charge was refused by the court.

• The court did charge however as to the faulty construction of such road which matter was not even mentioned in the petition of the executrix.

Verdict was rendered in favor of the executrix and error was prosecuted to the court of appeals where the judgment of the lower court was affirmed.

Counsel for the village in the Supreme Court contends:

1. The requested charge regarding notice to the village should have been given by the trial court and it was error to refuse to so charge.

2. It was error for the court to charge on the possible faulty or defective construction of the road that matter not having been alleged in the petition of the plaintiff in the action.  