
    3476.
    WASHINGTON COUNTY v. HOLLIMAN.
    Where this court, upon éxception to nonsuit, passes on the legal suffi- ' cieney of. the evidence, and it is held sufficient to support a verdict in the plaintiff’s favor, and upon a reti'ial of the case on substantially the same evidence a verdict for the plaintiff is rendered, and the case is brought to this court again, with no new question presented, but on the sole assignment of error that the verdict is without evidence to support it, it is the duty of this court to affirm the judgment with damages.
    Decided January 15, 1912.
    Action for damages; from city court of Sandersville — Judge Jordan.
    April 5, 1911.
    
      T. W. Evans, Hardwich & Wright, for plaintiff in error.
    
      Evans & Evans, contra.
   Powell, J.

When this case was here before (8 Ga. App. 718 70 S. E. 100), on exception to nonsuit, we held that whether the defendant was guilty of negligence and whether the plaintiff was guilty of- contributory negligence were jury questions, under the evidence as then presented. The evidence in the present record is substantially the same, though, perhaps, a little stronger in the plaintiffs favor. The retrial'of the case resulted in a verdict for the plaintiff. The only exception is that the verdict is contrary to the evidence. Even if it were likely that this court would change its views so soon on the questions presented alike by the former and the present records, it has not the right or legal power to do so, so far as affects this case. The plaintiff in error certainly could not have hoped for any benefit, other than delay, from bringing the case to this court. As we can not escape the conclusion that the case is brought for delay only, it is our duty to award damages.

Judgment affirmed, with damages.  