Murphy v. Ga. Ry. & Electric Co

• Citation: 4 Ga.App. 522,61 S.E. 1133
• Decision Date: 25 July 1908
• Docket Number: (No. 1,122.)
• Court: United States Court of Appeals (Georgia)
• Parties: MURPHY. v. GEORGIA RY. & ELECTRIC CO.

4 Ga.App. 522

61 S.E. 1133

MURPHY.

v.GEORGIA RY. & ELECTRIC CO.

(No. 1, 122.)

Court of Appeals of Georgia.

July 25, 1908.

Trial—Dismissal—Amendment—Variance.

Where the plaintiff proves his case as originally laid, but, in order to avoid the effect of testimony introduced by the defendant in contradiction of it, subsequently amends the petition, and thereby brings it into variance with all the proof, the court may, at least as against exception by the plaintiff, end the trial by an order of dismissal, in the nature of a nonsuit.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, § 364.]

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Action by M. L. Murphy against the Georgia Railway & Electric Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Jas. L. Key, for plaintiff in error.

Rosser & Brandon, W. T. Colquitt, and Ben J. Conyers, for defendant in error.

POWELL, J. The plaintiff sued the street car company, alleging that she was a passenger; that the car was stopped at her place for getting off; that, while she was on the step in the act of alighting, the motorman, with a sudden jerk, started the car forward and threw her to the ground, so that she was severely injured. This case she supported by her testimony. The defendant proved that before the car stopped, and, while it was near the crossing at which the plaintiff desired to get off, she stepped or jumped off, and thus was injured. So strong was this proof on behalf of the defendant that, while the argument of counsel was progressing, the plaintiff amended her petition by alleging that the car had not stopped when she attempted to alight, but that the conductor, by calling the street and ringing the signal bell for the motorman to stop the car, and by telling her, when she arose from her seat, to go out the front of the car rather than the rear, and by assisting her in her progress to the front platform, led her to believe that the car was stopped, and that while she was thus on the platform the car gave a jerk; and in this amendment she alleged that it was negligence for the conductor to assist her to alight before the car was stopped, and for the motor-man to jerk the car while she was in the position of alighting. The plaintiff returned to the stand, and, instead of supporting her amendment, reiterated her case as she had originally laid it. The judge granted an order in the nature of a nonsuit, dismissing the action for the variance...