dissenting. The basis upon which this court in its previous decision (Central of Ga. Ry. Co. v. Roberts, 213 Ga. 135) held that the plaintiff’s petition did not state a cause of action was that “The acts of negligence on the part of the defendant’s alleged employees put the plaintiff in a place of safety, and had he remained there, he would not have received the injury complained of,” and that “all of the acts of negligence alleged against the defendant had already taken place prior to the time the train began to move, and were clearly apparent and well known to the plaintiff at the time he began running along the side of the train, which voluntary act on his part caused him to trip, fall, and be injured. It thus appears that the plaintiff, by the exercise of ordinary care, could have avoided the consequence of the defendant’s alleged negligence.”
Count 2, which was added to the petition by amendment after rendition of the previous decision, alleges as an act of negligence the maintenance of the metal encasement box in the loading zone. This is not an act of negligence which had occurred prior to the time the plaintiff was put in a place of safety, and which was “clearly apparent and well known to the plaintiff at the *699time he began running along the side of the train.” Therefore, the conclusion reached by the majority in this case, that “the ruling previously made in the instant case by this court fixed the law of the case, and the Court of Appeals, like this court, is bound by that ruling,” is clearly erroneous. It did fix the law of the case on the petition as it stood at the time, but not on the petition as amended. Count 2 states a cause of action, and in my opinion the majority is in error in reversing the decision of the Court of Appeals.