The petitioner proved his case exactly as laid, and it was. therefore error to sustain the motion to nonsuit. The question as to whether the injury was occasioned by a fellow-servant or by the act of a vice-principal, or whether the vice-principal at the time was so acting as to constitute himself a fellow-servant of *439the plaintiff, was not argued, nor can we know that the court below passed upon this question. All of the facts proved were stated in the petition. If they were such as to constitute a defense, advantage should have-been taken thereof in the first instance by demurrer, or afterwards by motion to dismiss, and not by motion to nonsuit. The evidence disclosed no new fact. It did not make a case where the plaintiff first proved and then disproved his right to recover. Evans v. Josephine Mills, 119 Ga. 448 (1) and (2). Judgment reversed.
All the Justices concur.