Bray v. Chattanooga, Rome &c. Railroad

38 S.E. 849, 113 Ga. 308, 1901 Ga. LEXIS 239

Opinion

Lumpkin, P. J.

The plaintiff brought an action against the railroad company, alleging certain facts and averring that because thereof he had been damaged in an amount stated. The defendant filed an answer in which it denied all the material allegations of the plaintiff’s petition. The case went to trial upon this petition and answer, and at the close of the plaintiff’s evidence the court granted a nonsuit. Of this complaint is made in the bill of exceptions. We have carefully read the petition and the evidence, and it appears beyond doubt or question that the latter, assuming its truth, fully established the plaintiff’s case as laid. This being so, it was manifestly erroneous to grant the nonsuit. Though upon the argument here counsel for the defendant in error discussed the abstract question whether or not, under the facts proved, the railroad company was, as matter of law, hable to -the plaintiff, the reply is that the record does not disclose that any such question was raised in and passed upon by the trial court. It is now too well settled to admit of discussion that the sufficiency of a petition can not be brought into question by a motion to nonsuit. See, in this connection, Reeves v. Jackson, 113 Ga. 182, and authorities therein cited.

Judgment reversed.

All the Justices .concurring.