1. The first grant of a new trial is not closely scrutinized to detect errors in the grant. This is the first grant to this plaintiff in error.
*6482. Even if it were our duty to reverse this well settled rule, and to examine the various errors of law alleged in the motion for a new trial, upon all of which error is assigned here, either by the plaintiff in error or the defendant on a cross-bill of exceptions, or pendente lite bill, it seems to us that the case was not fairly presented to the jury, and that the judge was right to try the case again, to correct manifest error. Though the declaration may allege certain specifications of negligence by the servants of the company, yet if proof be allowed to go to the jury, without objection, outside of those alleged, we hardly think that the plaintiff should be held strictly to the allegata, no objection having been made to the admission of the evidence, and no motion to rule it out. The reason is obvious after verdict, because by amendment the declaration could have been amended, so as to cover the omitted allegations. Why should not the same rule obtain after the testimony is all in, the argument closed, and the judge is engaged in charging the jury? 49 Ga., 268 ; 52 Ib., 15.
3. But as the case is to be tried again, and the declaration may be amended, if necessary, it is unnecessary to rule this point. It is quite certain that the court erred in charging that plaintiff could not recover, unless it was impossible for him to extricate his hand without injury, when the emergency was upon him. The rule is that he could not, if by ordinary care he could have avoided the injury to his hand. Code, §2972.
4. It is quite certain, also, that the court erred in the charge that plaintiff must be blameless, without qualification. The law is, blameless about the business which caused the injury. If neglectful or careless, it must have been contributory to his hurt, to prevent recovery. 63 Ga., 173, since affirmed by a unanimous court.
5. So the court erred in charging to the effect that the burden is on the plaintiff, not only to show himself blameless about the catastrophe, but the defendant negligent. It is true both must appear to the jury; but the moment *649the plaintiff proves to the jury either, the legal presumption proves the other, mtil rebutted, and the -defendant, must rebut that presumption. See 61 Ga., 151, where this rule was clearly applied vice versa, that is, in behalf of the railroad company. It was there held that where the company proved contributory blame on the part of plaintiff, or freedom from negligence itself, then the presumption against it was rebutted, and the onus shifted on the plaintiff. It is true the above is not a case of an employe, and the presumption is on the company the moment the killing is shown; but the principle in respect to the shifting of the mus is analogous. The case of the Central Railroad Company vs. Sears in 59 Ga., 436, is more directly in point, and there the rule is laid down in favor of the company, 15 that no presumption arose in his (the employés) favor until he proved himself faultless or others to blame for the disaster.” When he did either, of course the burden was shifted.
6. The court itself ruled that it gave expression or intimation of an opinion on facts, as charged in the 8th ground. Having so concluded himself, and desirous to avoid the intimation another time, we do not interfere often with a judge who so thinks. While the facts do not require the' verdict, so that the grant of the new trial would be erroneous notwithstanding errors of law, we express no opinion on the point of weight of evidence, but leave the issue to the jury and court below.
