
    The Central Railroad & Banking Co. v. Murray.
   Atkinson, J.

1. Where, from extreme old age and both physical and mental infirmity, a witness had become incompetent to testify as to facts once within his knowledge and memory, and it appeared that he was likely to remain in this condition, or grow worse, there was no abuse of discretion in admitting in evidence his testimony introduced at a former trial of the same case when he was not so much afflicted with these infirmities.

2. The law of this case, as announced by this court in 93 Ga. 256, was substantially administered at the trial now under review; if any errors were then committed, they could not have resulted in any material injury to the defendant, and are not of such weight and importance as to require a new trial; there was evidence sufficient to warrant the verdict, and there having been already three trials of this case, each resulting in a verdict for the plaintiff, this court will not control the discretion of the trial judge in refusing to set the last one aside. .

July 29, 1895.

By two Justices.

Action for damages. Before Judge Hardeman. Houston superior court. October term, 189J.

For former reports of this case, see 90 Ga. 83; 93 Ga. 256. At the last trial the plaintiff obtained a verdict for $1,079.68.

Steed & Wimberly and John R. Cooper, for plaintiff in error. Hardeman, Davis & Turner, contra.

Judgment affirmed.  