
    McDONALD, by next friend, v. SAVANNAH ELECTRIC CO.
    The plaintiff testified that the conductor knew of his position, and that he did not know that the conductor intended to let the guard-rail down. The case was proved as laid, and it'was error to grant a nonsuit.
    Argued April 6,
    Decided May 12, 1904.
    Action for damages. Before Judge Norwood. .City court of Savannah. January 12, 1903.
    
      D. Mwood McOuen and W. P. LaRoche, for plaintiff.
    
      Obsorne & Lawrence, for defendant.
   Lamar, J.

The plaintiff was a passenger ón a street-car, and, owing to a breakdown, was invited to get upon another car; and that one being crowded, he was forced to sit between two seats with his feet on the left-hand running-board. He claims that the conductor knew that be was in that position, and that when the car reached a point where there was a double track the conductor with such knowledge dropped upon plaintiff’s hand the heavy guard-rail intended to prevent passengers from getting on or off the left-hand side, so as to avoid the danger of injury from cars on the parallel track. The defendant insisted that the plaintiff saw the conductor on the running-board, knew that he was there for the purpose of lowering the rail, and with such knowledge remained where he was with his hands between the standard and the brass rod forming the slot in which the rail worked up and down; that if plaintiff was not negligent, the injury was an accident, or one that plaintiff could easily have avoided. These defenses must be passed on by the jury and should not have been settled by an order of nonsuit. We have carefully examined the testimony, and find that while the plaintiff testified that he knew the conductor was on the left-hand side, he also -says that he did not know whether he was there for the purpose of collecting fares or not; that he had “ no idea as to what his purpose was.”. He swears positively that he was not leaning forward, but was looking out, and did not know that the conducter was going to let down the rail. The plaintiff proved his case as laid, and it was therefore error -to grant a nonsuit.

Judgment reversed.

All the Justices concur.  