It having been adjudged in this case, at the March term 1897 (101 Ga. 217), that the plaintiff below, notwithstanding the negligence of the defendant, was not, upon the facts appearing, entitled to a recovery, and the evidence at the trial now under review, though not in all respects as full as at the first trial, making substantially the same case and showing that the plaintiff might by the exercise of ordinary care and diligence have avoided the injuries of which he complains, the judgment granting a nonsuit was right.

Judgment affirmed.

dissenting. The evidence, in my opinion, making a case materially different from that formerly presented, and one which should be passed upon by a jury, I can not concur in th§ judgment of affirmance.