
    BRAY v. CHATTANOOGA, ROME &c. RAILROAD CO.
    It is erroneous to grant a nonsuit where the plaintiff proves his case as laid.
    Argued April 5,
    Decided April 25, 1901.
    Action for damages. Before Judge Reece. City court of Floyd county. September 17, 1900.
    The petition alleged, in brief, that the plaintiff was in a buggy drawn by a mule, traveling along a public road westward through a mountain gap in which, at his right, parallel to and very near the road for a distance of about two hundred yards, was a railroad track that in front of him crossed the public road nearly at right angles, at the entrance of the gap, when suddenly a train of the defendant, which until then the mountain at the left had prevented him from seeing,' came into the gap at that end at the rate of twenty-five or thirty miles an hour, and frightened the mule, which thereupon whirled around and turned over the buggy, thus causing the injuries sued for. He alleged that in going through the gap he had listened for a train but heard none, and that his injuries were due to the negligence of the defendant in failing to blow the whistle of the locomotive and check the speed of the train while approaching the public road crossing.
    
      A. G. Ewing and Bean & Bean, for plaintiff.
    
      McHenry & Maddox and A. C. King, for defendant.
   Lumpkin, P. J.

The plaintiff brought an action against the railroad company, alleging certain facts and averring that because thereof he had been damaged in an amount stated. The defendant filed an answer in which it denied all the material allegations of the plaintiff’s petition. The case went to trial upon this petition and answer, and at the close of the plaintiff’s evidence the court granted a nonsuit. Of this complaint is made in the bill of exceptions. We have carefully read the petition and the evidence, and it appears beyond doubt or question that the latter, assuming its truth, fully established the plaintiff’s case as laid. This being so, it was manifestly erroneous to grant the nonsuit. Though upon the argument here counsel for the defendant in error discussed the abstract question whether or not, under the facts proved, the railroad company was, as matter of law, hable to -the plaintiff, the reply is that the record does not disclose that any such question was raised in and passed upon by the trial court. It is now too well settled to admit of discussion that the sufficiency of a petition can not be brought into question by a motion to nonsuit. See, in this connection, Reeves v. Jackson, 113 Ga. 182, and authorities therein cited.

Judgment reversed.

All the Justices .concurring.  