1. Where a motion for a new trial was dismissed, and subsequently an order was passed vacating the dismissal and reinstating the motion, and where thereafter the motion was overruled and this last judgment was reversed by the Court of Appeals, and a new trial ordered, the respondent in the motion can not, on the second -trial of the ease, by a motion to “dismiss the case,” for the first time call in. question the validity of the order reinstating the motion.

2. The evidence in the present record being substantially different from that introduced on the former trial (Southern Ry. Co. v. Chance, 7 Ga. App. 650, 67 S. E. 836), and there being evidence on the present trial which was not introduced on the first trial, from which the jury could find that the noise made by the engine was both unusual and unnecessary, a nonsuit should not have been granted.

Judgmeni reversed.

dissenting. I do not think that the plaintiff materially strengthened his case by the additional evidence as to the character of the noise made by the engine; and, in my opinion, the present ease is controlled by the prior decision of this court.