
    Hobbs v. Bowie & Terhune.
    Argued November 17, —
    Decided December 10, 1904.
    . Certiorari. Before Judge Henry. Floyd superior court. February 10, 1904.
    
      H. F. Sharp and Moses Wright, for plaintiff.
    
      W. W. Brookes, for defendant.'
   Candler, J.

1. This being a suit for damages by an employee against his employers, which was governed by the common-law doctrine of master and servant; and it affirmatively appearing that the servant had equal means with the master of ascertaining the defective condition of the appliance alleged to have been the cause of his injuries, no recovery can be had against the master.

2. As the defendants offered no evidence, the proper procedure was to grant a nonsuit, rather than direct a verdict for the defendants (Hines v. McLellan, 117 Ga. 845); but inasmuch as the plaintiff, in his petition for certiorari, did not make this point, but contended merely that the verdict was contrary to law and the evidence and that the issues should have been submitted to the jury for determination, the judgment of the superior court overruling the certiorari will not be disturbed.

Judgment affirmed.

All the Justices concur.  