
    5200.
    Western & Atlantic Railroad Co. v. Poston.
    Decided December 9, 1913.
   Pottle, J.

This case is controlled substantially by the decision of this court in Western & Atlantic R. Co. v. Poston, 12 Ga. App. 124 (76 S. E. 1042), wherein it was held that the evidence did not authorize a recovery in the plaintiff’s favor. The reasons which impelled the court to reach the conclusion just stated were that the plaintiff was, under his own testimony, guilty of such negligence as defeated his right to recover. One of the reasons suggested in the former opinion was that the place at which his horse was killed was in a switch-yard; and while it does appear, from the evidence in the present record, that this place was not in a switch-yard, yet this difference in the evidence does not, under the former decision of this court, authorize a recovery in the plaintiff’s favor. The main ground upon which the decision was rested was that the plaintiff was guilty of gross negligence in attempting to ride his horse along the right of way, upon a path four or five feet wide, at a point where there was a steep embankment some ten or fifteen feet high, and at a time when a passenger-train was past due and this fact was known to the plaintiff. From the present record it appears that the plaintiff testified that he knew the passenger-train was past due, but did not know whether it had yet arrived. Under the decision of this court the fact that a freight-train was occupying the side-track and blocking the street-crossing was sufficient to put him on notice that a train was expected along the main line. Upon the question of the plaintiff’s gross negligence there is no material difference between the evidence in the present record and the evidence in the record when the case was before this court at a previous term. For this reason the court erred in- overruling the motion for new trial.

Judgment reversed.

Appeal; from Whitfield superior court — Judge Fite. August 1, 1913.

Tye, Peeples & Jordan, Maddox, McCamy & Shumate, for plaintiff in error. W. E. Mann, contra.  