I concur in the judgment of affirmance solely on the ground that in the petition as amended it is alleged that after the defendant’s servants saw the person for whose homicide the suit is brought, and observed his presence in a position Of peril, they could, in the exercise *220of ordinary care, have avoided killing him. Under the facts alleged, the plaintiff .is not entitled to recover for mere negligence less than wilfulness and wantonness. McIver v. Georgia Southern & Florida Railway Co., 108 Ga. 306 (33 S. E. 901); Roach v. Atlanta Railway Company, 119 Ga. 98 (45 S. E. 963); Georgia Railroad Co. v. Williams, 3 Ga. App. 274 (59 S. E. 846); Central of Georgia Railway Co. v. Mullins, 7 Ga. App. 381 (66 S. E. 1028).
Decided August 16, 1913. Action for damages; from city court of Baxley — Judge Sellers, August 24, 1912. Bennet, Twittg & Reese, J. B. Moore, for plaintiff in error. Parker & Highsmith, contra.