Bryan v. Moncrief Furnace Co.

157 S.E. 519, 42 Ga. App. 670, 1931 Ga. App. LEXIS 99

Opinion

Jenkins, P. J.

1. The evidence adduced by the plaintiff could have been taken by the jury as substantially proving the petition as laid, and therefore it can not be said, as a matter of law, that under no possible view of the evidence could a finding for the plaintiff have been authorized. Accordingly, the court erred in granting a nonsuit. See, in this connection, Farrar v. Farrar, 41 Ga. App. 120 (149 S. E. 70).

2. The court did not err, as complained of in the cross-bill of exceptions, in admitting the testimony of the plaintiff as to the custom of the trade, in putting in electrical connections, to clear the line of defects in switches through which the current passes. Auld v. Southern Ry. Co., 136 Ga. 266, 269 (71 S. E. 426) ; Pickett v. Central of Ga. Ry. Co., 138 Ga. 177, 179 (74 S. E. 1027, Ann. Cas. 1913C, 1380). While, as was ruled in cases cited by the defendant, to authorize proof of a custom of business as seeking to supply essential particulars to an unambiguous contract, the custom must be specially pleaded (Hamby v. Truitt, 14 Ga. App. 515 (3), 81 S. E. 593; Matthews v. American Textile Co., 23 Ga. App. 675 (5), 99 S. E. 308), such a rule does not have application in cases such as the instant suit for personal injuries.

Judgment reversed on the main bill of exceptions; affirmed on the cross-bill.

Stephens and Bell, JJ., eoneur. J. K. Jordan, for plaintiff. Tye, Thomson & Tye, Paul 8. Etheñdge & 8on, for defendants.