
    City of Rome v. Sudduth.
    Argued November 17, —
    Decided December 10, 1904.
    Action for damages. Before Judge Henry. Floyd superior court. February 5, 1904.
    
      Hoisted Smith, for plaintiff in error.
    
      Seaborn & Barry Wright, contra.
   Simmons, C. J.

1. Where a declaration has been demurred to in the trial court and the demurrer overruled and that judgment reversed by this court, upon the return of the remittitur to the lower court the plaintiff has the right to amend his declaration. Charleston Ry. Co. v. Miller, 116 Ga. 92. It is otherwise where the lower court has sustained a demurrer and that judgment affirmed by this court. In the latter case there is nothing in the lower court to amend. Central R. Co. v. Patterson, 87 Ga. 646.

2. The ruling of this court when the case was here before was that there were not sufficient facts alleged to authorize the plaintiff to recover (City of Rome v. Suddeth, 116 Ga. 649); but there was enough in the declaration to amend by.

8. The petition as amended was good against the general demurrers filed thereto.

4. Negligence is a question for the jury. The trial judge can not instruct the jury what facts do or do not constitute negligence, except where declared by statute. Consequently it is error for the judge, in a suit for damages' based on the negligence of the defendant, to charge that if the defendant’s failure to do its duty “was in accordance with the allegations of the plaintiff’s petition, then that would be negligence, as he charges in this case.” Augusta Ry. & El. Co. v. Smith, 121 Ga. 29.

6. Taken in connection with the entire charge, no error appears in the portions of the charge, other than as just above pointed out, to which exception was taken.

6. It is not error to refuse a request to charge which is in part inapplicable to . tfie case. Judgment reversed.

All the Justices concur.  