I do not assent to that portion of the judgment which states that we could affirm the judgment for the reason "that plaintiff had failed to prove with legal certainty sufficient facts to hold defendant liable." On that score, I am of a different opinion, believing that the doctrine as laid down in the cases of Russo v. Texas P. Ry. Co. and Jackson v. Cook, cited in the opinion, is controlling; following these decisions, I am of the opinion that plaintiff should recover. I do not assent also to the statement that the defendant, by not offering any testimony, did not close its case. On that score, I am of the opinion that, by the verbal motion for judgment in its favor, defendant closed and rested its case. However, I subscribe to the decree for the reason that under Article 906 of the Code of Practice justice may be better served by a remand.