dissenting.
In my judgment the case made on this trial takes this judgment of the superior court without the decision of the case between the same parties in the 58th Ga.
The supervisor of the track, the immediate superior officer of the plaintiff, who was a section master, directed the plaintiff to attend to some business on a section other than his own, and with which he w'as unacquainted, and put the plaintiff in charge of the supervisor’s crank-car, with the use and working of which plaintiff wras also unacquainted, having been on it but once with the supervisor ; and although the supervisor knew that the car was light and the flange of the wheel quite shallow, and that the car ran off the track very easily at frogs, and had frequently run off with the supervisor at frogs, yet gave no notice thereof to the plaintiff, who did not know it ever ran off. The plaintiff had been accustomed to a pole-car, much heavier and less liable to run off the track, and in consequence of his want of notice of the character of this car on which the supervisor placed him, and of its having frequently run off the track with the supervisor at frogs, passing the point of danger with less care than he would have used had he known of its liability to run off at such a place, the car was thrown from the track and plaintiff was badly crippled.
This is substantially the case made by the plaintiff’s proof, *105the jury passed upon the evidence and believed this version of the transaction, introduced under an amendment not demurred to ; the presiding judge, certainly not inclined to be partial against railroad companies, as he is a director of one of them, approved the finding, and the rule applied to all natural persons that this court will not interfere with the discretion of the presiding judge in refusing a new trial on the ground that the verdict is strongly against the wreight of the evidence, unless that discretion has been abused, should be applied, I think, in this case, under these facts, to this company.
If the above facts were believed by the jury, the company was negligent in that the supervisor did not warn his subordinate of the character of the car and the danger to be apprehended when it passed over the frogs, and the jury having found the fact of negligence against the company, it being peculiarly their office to pass upon questions of negligence — ‘and there being evidence sufficient to support the finding — I cannot say that the judge abused his discretion, and therefore I think the judgment should be affirmed, and I dissent from the reversal.