(dissenting):
There was a nonsuit upon the first trial, which was set aside by the trial judge and we affirmed. The case went back for. a new trial and a verdict was rendered for the plaintiff. The defendant’s motion for a new trial was denied, and the case is here again on appeal.
The evidence is no more favorable to the defendant than it was when the case was here before. It is now proposed to reverse the judgment and send it back for another trial, upon the ground that the evidence fails to establish actionable negligence against the defendant.
I think the order setting aside the nonsuit was not a discretionary order; the effect of our affirmance was to hold not merely that it was discretionary with the trial judge to submit the case to_ the jury, but that the evidence was such as to require that to be done.
*806Of course the question is still in the case whether the verdict is against the weight of the evidence, but it does not seem to me that the judgment should be disturbed upon that ground. So far as there is any conflict in the evidence the jury was well warranted in finding with the plaintiff.
I am not convinced that our former decision is wrong.
I think the judgment should be affirmed.
Spring, J., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.