A majority of the court, composed of ANDERSON, C. J., and SAYRE, SOMERVILLE, and THOMAS, JJ., are of the opinion, and so hold, that the trial court erred in giving the plaintiff's requested charge 2. The first part of it invaded the province of the jury, as it was for them to decide whether or not it was the motorman's duty to have sounded the gong under the circumstances disclosed by the evidence. Indeed, the original opinion seems to concede this, but holds that this erroneous statement was so cured or neutralized as to render the charge merely misleading; but the majority think that the charge in its entirety was erroneous, and not merely misleading. While the latter part of said charge hypothesized that, if he negligently failed to do so, etc., the first part had already charged that it was his duty to do so, and in effect that he was guilty of negligence, and this error was not cured by the remainder of said charge.
Application for rehearing granted, judgment of affirmance set aside, and reversed and remanded.
McCLELLAN, GARDNER, and MILLER, JJ., adhere to the original opinion, and dissent from the reversal of the case.