In this suit against a street-railway company to recover damages-for injuries alleged to have been sustained by the plaintiff as a result of the defendant’s negligence, the petition alleged, and from the evidence at the trial the jury could have inferred, that the plaintiff, intending to become a passenger upon the defendant’s street-ear, which was approaching several hundred feet away, stepped upon the track in front of it, at a point within 35 feet of an established ear-stop and between the stop-sign and the approaching car, and signaled to the motorman his desire to board it; that on observing that his signals were not *725heeded and while there was yet time for hi-m to clear the track in safety, he undertook to do so, when, for some reason, he stumbled and fell, and that while in this position and before he was able to extricate himself the ear ran over his limbs and feet, seriously injuring him; and that the defendant’s motorman, after discovering- the plaintiff’s perilous position, failed to exercise ordinary diligence to avoid the casualty, and thus caused the injuries which the plaintiff sustained. It is contended by the defendant that the occurrence was not upon a public street, and that the plaintiff was a trespasser. Held: Even assuming that the plaintiff was a trespasser, since the jury could have concluded that the defendant’s motorman failed to exercise ordinary care for the plaintiff’s protection after his peril had become apparent, a verdict for the‘plaintiff would have been authorized and the court erred in dismissing the petition on the ground that, under the pleadings and the evidence, there could be no recovery against the defendant. Burden v. McMillan, 35 Ga. App. 639 (134 S. E. 189).
Decided February 18, 1928. Q. B. Moore, Baad Sims, for plaintiff. Colquitt & Conyers, Sidney Smith, for defendant.Judgment reversed.
Jenkins, P. J., and Stephens, J.,' concur.