
    ANNA VALIANT, PLAINTIFF-APPELLEE, v. PLAZA REALTY COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT, AND HELLER CONSTRUCTION COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, AND BERNARD MILLER, DEFENDANTS.
    Submitted October 12, 1928
    Decided March 28, 1929.
    Before Gummere, Chief Justice, and Justice Parker.
    For the plaintiff, Joseph C. Cassini.
    
    For the defendants, Saul & Joseph JE. Cohn.
    
   Pee Cuexam.

This is an appeal of the Plaza Realty Company from a judgment for damages entered on a verdict of a jury. The ease as originally made on the pleadings charged the appellant with negligence in the maintenance of a coal-hole in the sidewalk; but as the proofs came in, the court held that there was no evidence to charge the landowner on that point. There was a motion for nonsuit on the ground of variance which the judge refused, and allowed an amendment to charge the owner with defective original construction. There was evidence tending to support this charge because the testimony indicated that the coal-hole cover was new but would tilt and let the passerby down into the hole unless stepped on in the exact center.

Of the eleven grounds of appeal there is only one that properly raises a ruling for review; the others are all indefinite and therefore unavailable. The last ground, however, is that the trial court refused to nonsuit the plaintiff at the close of the plaintiff’s case. We conclude that the non-suit was properly denied. As the evidence stood it indicated an improper construction of the coal-hole and that the appellant was the abutting owner. This was enough to raise a prima facie case against the appellant, and inasmuch as the court in its discretion was entitled to allow the amendment so long as there was no injurious surprise, the evidence is within the pleadings as amended and consequently the judgment must be affirmed.  