I dissent from the order denying a rehearing and from the judgment of the court. A careful examination of the evidence convinces me that the testimony of the plaintiff and his son does not necessarily lead to the conclusion that the accident occurred at or in the immediate vicinity of the end of the grade as it existed in 1900, or, in other words, at a point one thousand feet, or thereabouts, north of point B. They were testifying from recollection and *Page 234 did not pretend to locate with precision the position of the hole into which they drove, and while plaintiff places it eight or ten rods from the end of the first grade at one time, he puts it at twenty rods in another part of his evidence, and describes it as one third of the way "across the water." "Across the water" in that connection meant the overflowed space between the end of the long grade and the beginning of the short grade, which, at the time of the accident was 1,047 feet wide, so that according to this testimony the hole was located over 300 feet from the end of the first grade, and the most trustworthy evidence in the case — the levels established by actual survey — shows that water diverted by the dam of defendant not only might have reached that point, but in seeking its own level must inevitably have overflowed all the low graded part of the road up to the terminus of the long grade as then existing.