Gosnell v. Central of Georgia Railway Co.

Wade, J. 1. The petition alleged that the plaintiff “was attempting to get off of said train, and, before he had had a fair opportunity to do . so, said train suddenly started in motion, and your petitioner. was thrown from said train against the ground, a distance of thirty feet, and as a result your petitioner was internally injured,” etc. The proof „ did not show that the plaintiff was thrown from the train against , the ground by the sudden starting of the train, but, on the contrary, . showed that he voluntarily left the train and jumped to the ground [68] after tlié train was in motion, so that his injuries did not result from any jerk' or sudden movement of the train. There was a material . variance between the allegata and the probata. Decided September 10, 1915. Action for damages; from city court of Madison — Judge Anderson. October 15, 1914. J. 8'. Grant, Williford & Lambert, for plaintiff. Harris & Harris, Middlebroolcs & Burruss, for defendant. 2. In ease of a jerk or sudden start by which one alighting from a train is thrown to the ground, it will be presumed that there was a negligent act in the operation of the train; and where one alights from a mov- ■ ing train by the order of the conductor, the consequences chargeable to the conduct of the conductor, will be imputed to the company itself. In this case there was no negligent act in the operation of the train, and there was no negligent order on tlie part of the conductor to the plaintiff, which caused the plaintiff to fall or induced him to assume the obvious risk of alighting from a moving train, but he voluntarily undertook the risk himself. 4. Conceding that the demurrer to the petition was properly overruled, the evidence made a different case from that laid in the petition, and the court below did not err in awarding a nonsuit. Judgment affirmed.