dissenting. The majority of the court are of the opinion that the trial judge erred in granting a nonsuit, and that *757therefore the ease should be reversed on the main bill of exceptions. I cannot concur with my colleagues in this judgment. I am of the opinion that the action of the court in granting a nonsuit was proper, for the following reasons: When this case was previously here for review the evidence was thoroughly studied and considered, and the following ruling made: “That the cause of action, if any, arises under the Federal employer’s liability act, and under the petition as filed ‘the case pleaded was not proven and the case proven was not pleaded,’ and the court properly granted the nonsuit.” Williams v. W. A. Railroad Co., 20 Ga. App. 726, 729 (93 S. E. 555, 556). On motion for rehearing this court held that the doctrine of res ipsa loquitur did not apply, and quoted with approval the following: “Negligence cannot be inferred merely from the fact of disaster; the burden being on plaintiff to establish by proof that negligence did exist. . . A case may not be submitted to the jury where there is at most only a balanced probability that actionable negligence existed. . . Manifestly a presumption of negligence does not arise upon mere evidence of an injury sustained. . . The maxim res ipsa loquitur does not apply where the accident might have been due to improper handling as well as to improper furnishing the thing causing the accident.” Ib. 730, 731, 732.
The record now before us in this case discloses that although there was an effort made to add to the testimony introduced on the former trial and to introduce new features into the case, the evidence is substantially the same as it was when this court made the ruling above referred to. No material changes have been made in the case as a whole, and though two new witnesses were introduced, their testimony at most does not amount to more than suggestions or inferences as to possibilities. It is my opinion, therefore, that since there is no material or substantial change in the record now under review and the record reviewed by this court when this case was previously before it, the rulings then made are controlling.
It is unnecessary, under the view I take of the case, to pass upon the questions raised by the cross-bill of exceptions.