I concur in the judgment of reversal, and am in agreement with the majority in everything, except as to the evidence tendered by the railroad company with respect to the physical condition of the railroad track on and prior to November 3d. In the former judgment of this court, affirming as to liability, it was necessary as a predicate to that adjudication to hold and to adjudicate finally that the facts now relied on by the railroad company did not exist on and prior to the date mentioned; and yet the majority is allowing the railroad on a new trial, upon the issue of damages alone, to show, if it can, that these identical facts did exist. This is to allow a finding upon a given issue of law that certain physical facts did not exist, and upon another issue of law in the same case that the same controverted physical facts did exist. This is beyond me, and I concur with Judge ETHRIDGE upon that point.