Where it appears in a suit against a railroad company, .for damage on account of the killing of live stock, that the engineer was at the place on the engine where his duty required him, that he was looking ahead when the animal was first seen in the middle of the track in a curve, that "because of the curve, the boiler, smoke-stack, and sand-box, obstructing the view, the animal could not have been .sooner seen, and that it was impossible to stop the train before striking the animal after it was seen, and the only circumstance from which negligence could be inferred was that the fireman at the time of the killing of the animal was engaged in supplying his engine with fuel, and was not •on the lookout, such absence of the fireman from a position ■to look out, and the failure of the railroad company to place a third employee on the engine to take the fireman’s place -when ho was supplying his engine with fuel, would not warrant a finding in favor of the plaintiff.
2. So far as what may be stated above may be in conflict ■with the decision rendered by this court in Northeastern R. R. Co. v. Martin, 78 Ga. 603, that case, after a review in .■accordance with the prescribed rule's of this court, is overruled.
3. The jury in the justice’s court having found in favor ■of the plaintiff, and there being some evidence to sustain ■the finding, but the preponderance of the evidence being against the finding, the judge of the superior court would not have abused 'his discretion if he had ordered a new trial in the justice’s court; but as the record does not make a case where “the error complained of is an error of law which must finally govern the case,” and as it is one involving a *701question or questions of fact,' which, under the law made-it “necessary to send the case hack for a new hearing” before the justice’s court, it was error in the judge of the superior court to render a final judgment in the case instead of sending it back for a new trial. Oivil Oode, §4652. This-being 'true, direction is given that the judgment below be set aside, and in its stead that a judgment be entered sustaining the certiorari and ordering a new trial in the justice’s court.
'Judgment reversed, with. 'direction.
All the Justices concurring.