Kinnard v. McElroy , 51 Ga. App. 249 ( 1935 )

Sutton, J.

In order to prevent a nonsuit the evidence must tend to prove the case as laid in the plaintiff’s petition. The petition in this case alleged that while the plaintiff was aiding in digging a well upon the defendant’s premises, and while he was down in the well loading buckets with dirt and rock to be drawn out, he was badly injured because of the negligence of the defendant, an aged and infirm man, in undertaking to help draw out the filled buckets by means of a windlass and rope, to which was attached a hook on which the bucket was placed, in that when the defendant attempted to remove the bucket from the hook he did so over the mouth of the well and carelessly allowed the bucket to drop down into the well, striking' the plaintiff’s head. On the trial of the case there was no evidence tending to show that the defendant was negligent as alleged. The only evidence upon this subject was that of the defendant, who was put up as a witness by the plaintiff, and he testified that he did not know how the bucket came off, and that he did not touch the bucket or the rope. The wife and son of the plaintiff testified that immediately after the accident happened the defendant told them that when the bucket reached the top of the well he started around to take it off the hook, and that before he reached the same it fell back into the well and he did°not know what made it fall. In these circumstances, the evidence failed to show that the plaintiff was injured by reason of any negligence of the defendant, as alleged in the petition; and the trial judge did not err in awarding a nonsuit.

Decided May 9, 1935. Qwrl T. Hudgins, for plaintiff. Branch & Howard-, H. L. Tiller, for defendant.

Judgment affirmed.

Jenkins, P. J., wnd Stephens, J., eoneur.