Opinion
35400.
DECIDED FEBRUARY 3, 1955. REHEARING DENIED MARCH 2, 1955.
Damages. Before Judge Houston. Jackson Superior Court. August 4, 1954.
Kermit C. Bradford, H. W. Davis, Jack S. Davidson, for plaintiff in error.
T. J. Syfan, Wheeler, Robinson Thurmond, contra.
"Regardless of whether a petition sets out a cause of action, if the plaintiff proves every fact charged, without at the same time disproving his right to recover by establishing the existence of other undisputed facts which show that he is not entitled to a verdict, it is not proper to award a nonsuit." Clark v. Bandy, 196 Ga. 546 ( 27 S.E.2d 17). See also Williams v. Smith, 210 Ga. 325 ( 80 S.E.2d 289); Buchanan v. Heath, 210 Ga. 410 (1) ( 80 S.E.2d 393); Garmon v. Boozer, 210 Ga. 542 ( 81 S.E.2d 456). The phrase "other undisputed facts," establishment of the existence of which may defeat the action, refers to evidence barring the plaintiff's right to recover other than that pleaded as the cause of action. Fogarty v. Hartley, 89 Ga. App. 437 (1) ( 79 S.E.2d 409). There is some evidence in this record to support every material allegation of the petition, for which reason the grant of a nonsuit was error.
Judgment reversed. Townsend and Carlisle, JJ., concur.
DECIDED FEBRUARY 3, 1955 — REHEARING DENIED MARCH 2, 1955.
Mrs. Agnes O. Bradford brought an action for damages against the City of Commerce in the Superior Court of Jackson County. The negligence alleged against the city consisted in the removal by its employees of certain boards which formed a means of access from a public road to the premises of the plaintiff's sister-in-law, while the city construction department was scraping out the gutter or ditch over which the boards had been placed as a walkway, and in replacing them in such fashion that, while they appeared secure, they were in fact lying loosely upon the top of piles of dirt in such manner as to roll or rock under use. The plaintiff alleged that, while crossing over this walkway at night, it being the sole means of access to the premises, she was thrown by the boards tilting under her weight, and as a result fell and sustained certain described injuries; and she offered evidence in support of each of these contentions. At the conclusion of the plaintiff's evidence, a motion for nonsuit was granted.