Findley v. Central of Georgia Railway Co.
Findley v. Central of Georgia Railway Co.
Opinion of the Court
The petition alleged that the plaintiff was a passenger on the train of the defendant company; and when she arrived at her destination, a small station in Bulloch county, between Savannah and Dublin, and when the train had stopped for that station, she prepared to leave the train, and "your petitioner was stepping off the said train upon the ground in the act of alighting, when said train suddenly jerked forward, throwing petitioner from, the steps of said train upon the hard ground, then and there wounding her,” etc. The trial resulted in the direction of a verdict for the defendant. The motion to direct the verdict was based on tw.o grounds: that there was a variance between the petition and. the proof, and that the plaintiff was guilty of contributory negli- ’ gence.
The direction of a verdict is not the proper disposition of the case where there is a variance between the petition and the proof; there should be a nonsuit. Proctor & Gamble Co. v. Blakely Oil Co., 128 Ga. 606 (57 S. E. 879); Caudell v. Southern Ry. Co., 2 Ga.. App. 479 (55 S. E. 689); Murphy v. Ga. Ry. & El. Co., 4 Ga. App. 522 (61 S. E. 1133); Gay v. Peak, 5 Ga. App. 584 (63 S. E. 650).
Further, we do not see that there was a material variance.- It
An ordinary person seeing what happened, if the statement of the old lady is true, would most likely have described it by saying that the train suddenly started or jerked forward while she was alighting, and threw her to the ground. The fact that after the unexpected movement of the train had caused her to lose her equilibrium, and it was a question of whether she should fall on her head or her body, or her feet, she went through the motion of jumping so as to sustain the fall on her feet instead of elsewhere, does not make it any the less true that she was thrown off. If one will examine the long list of definitions and usages of the verb “throw,” as contained in the Century Dictionary, it will seem plain that there is little or no verbal inaccuracy in describing such a situation by saying that the old lady was “thrown off” by the sudden movement of the car. It is not required that the correspondence between the pleading and the proof shall be literal or to absolute verbal nicety; it is sufficient if there is a reasonable and substantial correspondence.
To sustain the direction of the verdict on the theory that the plaintiff was guilty of contributory negligence in jumping, counsel
Case-law data current through December 31, 2025. Source: CourtListener bulk data.