
    DISTRICT OF COLUMBIA v. DONALDSON.
    Municipal Corporations; Pleading; Variance.
    Where, in a personal injury action against a municipality, the declaration charges that the injury to the plaintiff was caused by a defect in the sidewalk, while the evidence shows that the defect was not in the sidewalk, but on a path leading from it across a parking, and temporarily used by the public during a period of snow and ice, to avoid passing over the place described in the declaration, — the variance between the allegation and proof is fatal, and a verdict for the defendant should be granted.
    No. 2334.
    Submitted January 5, 1912.
    Decided February 5, 1912.
    Hearing on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for personal injuries.
    
      Reversed.
    
    The facts are stated in the opinion.
    
      
      Mr. Edward H. Thomas, Corporation Counsel, and Mr. Francis S. Stephens, Assistant, for the appellant.
    
      Mr. John Q. Qittings and Mr. Justin Morrill Chamberlin for the appellee.
   Mr. Justice Van Orsdel

delivered the opinion of the Court:

Appellee, Laura V. Donaldson, plaintiff below, secured a judgment against the District of Columbia for damages for personal injuries resulting from a fall. In her declaration she specifically charged that the accident occurred on a sidewalk where defendant had negligently left a “precipitous descent, or incline, unpaved, ungraded, and unguarded, and dangerous to persons passing” thereon. The evidence disclosed that the accident did not occur on the sidewalk, but on a path leading from the sidewalk across the parking, and temporarily used by the public during a period of snow and ice, to avoid passing over the place described in the declaration. The variance between the allegations and the proof is fatal. The motion of defendant for an instructed verdict in its favor should have been granted. The judgment is reversed with costs, and it is so ordered.

Reversed.  