Davey

I concur in the judgment and in the opinion of Mr. Justice Van Fleet. It is proper to say that owing to the peculiar condition of the record, and the wrong reasons given for exclude ing certáin evidence, the department, on the former hearing, very naturally overlooked the distinction between the position of a party seeking to reverse a judgmerit and that of a party seeking to maintain it.

Appeal by plaintiff from a judgment of nonsuit and an order denying a new trial.

The action was for damages for personal injuries, and the complaint alleged in substance that defendant operated a railroad upon a public highway in Alameda county, known as Stanford street; that there was a culvert or drain crossing said street and extending under the tracks of defendant’s road, which was securely and safely covered with planking and earth; that defendant caused this drain to be opened and excavated to a greater depth and width, and thereafter negligently left it open and unprotected, and in a dangerous condition for the whole distance across said street and under defendant’s track. That while it remained in this dangerous condition, plaintiff, without knowledge thereof, in proceeding, in the night-time, to “ cross said railroad track, on said street,” fell between the rails of said track into the excavation, and received the injuries of which she complained.

At the trial, plaintiff, without amendment of her com *328 plaint, offered evidence tending to show that the point where the drain or culvert crossed beneath defendant’s track, and where the accident occurred, instead of…

I dissent. The only real objection to the evidence offered by plaintiff was upon the ground of variance, and that objection was not made. Not being specifically made it was waived, because by section 469 of the Code of Civil Procedure it is expressly declared that “no variance between the *333 allegation in a pleading and the proof is to be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his, action or defense upon the merits. Whenever it appears that a party has been so misled, the court may order the pleading to be amended on such terms as may be just.”

There can be no better evidence that a party has not been misled to his prejudice by a variance in the proof than is afforded by his failure to object to it on that ground. His failure to object is a tacit admission that he will not be prejudiced, and makes it the duty of the court, under the section quoted, to disregard the variance as immaterial. If he does object on that ground, and it appears that he has been misled, it then becomes the duty of the court to order an amendment on such terms as may be just. In this case, if this law had been observed, the worst that could have…