The plaintiff’s allegations may be seen by reference to a former report of the case. 89 Gta. 718. The last trial resulted in a verdict for the plaintiff, and defendant’s motion for a new trial was overruled. The main witness for the plaintiff was Joe Herrick, who was fireman upon the engine that killed Barnett. According to his testimony, the engineer was aware of Barnett’s presence in time to avoid injuring him, but gave no signal or warning, and made no effort to check the engine, but recklessly or willfully ran it forward. As to testimony in conflict with that of Herrick, see the fifth headnote. The motion for new trial was upon the following grounds:
1. Refusal to continue the case for the absence of
2. Permitting plaintiff’s counsel in opening argument, •over objection, to read to the court, in the presence and hearing of the jury, the statement of facts and decision in the case of Railroad Co. v. Denson, 84 Ga. 774, discussing the former decision in the present case, and contending that the facts of the Denson case were analogous to those of the case on trial, and that the decision thereon -controlled the present case.
3. Refusal to charge, that the jury could not find for the plaintiff’ unless they believed beyond a reasonable doubt that the engineer was guilty of murder or some other indictable offence; and that in considering the issue as to whether the engineer was guilty of willful homicide, the railroad company would be entitled to all reasonable doubt; and if, after considering all the evidence in the case, the jury should have a reasonable -doubt of his guilt, it would be their duty to give the
4. Refusal to charge as stated in the fourth head-note.
5. Verdict contrary to law and evidence.