When this case was here upon a former occasion
(Central of Georgia Ry. Co. v. Cox, 32 Ga. App. 49, 122 S. E. 647), it was held that the presumption of negligence which arose from proof of the damage by the running of defendant’s train was satisfactorily met, and it was ordered that the verdict finding for the plaintiff be set aside as being contrary to the evidence. TJpon the next trial the court directed a verdict in favor of the defendant, and the plaintiff excepted. The evidence adduced upon the second trial was materially different from that appearing in the record of the first trial, in that the engineer testified at the second trial as follows: “I saw the cows about two or three hundred yards before I reached them. I realized that they were on or near the track when I saw them. I was going about twenty miles an hour. I can stop my locomotive in'about a hundred yards if I am going about thirty miles an hour. . . I didn’t stop it or try to stop it on this day.” In view of this testimony, although in other respects the evidence was substantially the same on both trials, the present record makes a substantially different case from that presented for decision under the former record, and the plaintiff is not concluded by the previous decision, either as the “law of the case” or as a precedent. The presumption of the defendant’s negligence was not conclusively overcome by the evidence, and the court erred in directing a verdict in the defendant’s favor. This is true notwithstanding the engineer and the fireman each testified that he did not see the particular cow in question, since it was inferable, under the evidence, that this animal was one of a herd of cattle, all of which were on or near the railroad track and in a cut, and that the servants of the company failed to exercise proper care and diligence as to the herd. Western & Atlantic R. Co. v. Smith, 15 Ga. App. 289 (2) (82 S. E. 906); Louisville & Nashville R. Co. v. Ernest, 31 Ga. App. 810 (1) (122 S. E. 260); Atlantic Coast Line R. Co. v. Paulk, 33 Ga. App. 293 (125 S. E. 865).
Judgment reversed.
Jenkins, P. J., and Stephens, J., concur.