7 Ga. App. 67 | Ga. Ct. App. | 1909
It appears to us that the judge might have directed a verdict in favor of the Atlanta, Birmingham & Atlantic Eailroad Companjq but he was not authorized to award a nonsuit in favor of its eodefendant, Forbes. The nonsuit was granted after the evidence had been closed on both sides. At this stage of the case it is not strictly regular to award a nonsuit. A nonsuit should be granted, if at all, when it is apparent that the plaintiff has failed to make out his ease as laid, and before the defendant is put to the necesshy of introducing proof. However, as pointed but in Murphy v. Georgia Ry. & El. Co., 4 Ga. App. 533 (61 S. E. 1133),
As far as appears from the record, the plaintiff was not entitled to a recovery against the railroad company. The plaintiff himself testified, that he did not know by whom he was employed; that he was working at the instance of one Mr. Cameron and with Mr. Gatlin’s gang. His statement that he was working for the defendant railroad company was merely opinionative, and was of no probative value. It later appeared, from the testimony of the construction boss, that the building of the shops, at which the plaintiff was engaged, was being done by the construction company, which, so far as the record shows, was an independent contractor, for whose negligence the railroad company would not be liable. Johnson v. W. & A. R. Co., 4 Ga. App. 131 (60 S. E. 1023). And so a non-suit as to the railroad company, if it had been sued alone, though not the regular disposition of the case, would not have been erroneous, for it would not have been injurious to the plaintiff.
So far as the action against Eorbes is concerned, it was error to award a nonsuit, because the most that can be said in regard to the testimony bearing on the question of his liability is that there was conflict in the evidence, with an apparent preponderance of testimony in his behalf. The defendant Jordan testified, that he was on a ten-foot sill at the second story of the building which was being constructed; that he could not move except on this ten-foot sill; that the floor joists had been piled so that he could not step over them, and that as he was thus hemmed in at a perilous height, Eorbes dropped the sill and mashed his foot, though he was looking at Eorbes and Eorbes was in plain view of him. It is true that several witnesses testified that there was no reason why the plaintiff
Judgment reversed.