Since the foregoing opinion was written our attention has been called by appellee to the case of L. N. R. R. Co. v. Woods, 105 Ala. 561, 570, 17 So. 41, 45. It was there said:
"There was no error in receiving testimony as to the rate of speed of the train at Holmes' Gap, which was not more than a mile and a half from the place of the injury. The jury could very properly consider the rate of speed here, in determining the rate of speed at a place so near."
So far as the prima facie relevancy of the evidence in the instant case is concerned, we think the question is foreclosed by the decision in the Woods Case.
If subsequent developments in the course of the trial nullified this prima facie relevancy, which we need not determine, a motion should have been made for its exclusion, failing which the trial judge cannot be put in error for its original rightful admission.
We, of course, do not overlook the difference between a railroad train running on rails, and probably observing the obligations of a schedule time, and an automobile running on the highway at the will of its driver. There is a difference, but the difference is in the strength of the inference and its probative value, and not in the principle of relevancy and admissibility.
With respect to the distance at which previous speed is admissible for this purpose, there must indeed be some limit; but, as in all similar cases, this will depend upon the facts of each case, and must be left to the sound discretion of the trial court.
The application for rehearing will be overruled.
McCLELLAN, GARDNER, and THOMAS, JJ., concur. ANDERSON, C. J., and MAYFIELD and SAYRE, JJ., dissent.