A petition for rehearing is presented, the burden of which is that the Court erred in stating that the Circuit Judge viewed the premises before the charge, and that that might have had some weight and influence in his charge to the jury; that the Circuit Judge looked at the premises on his way from home to Orangeburg, but after the trial had been concluded for some days.
At page 2, folios 7-9, of the transcript of record, this occurs: "Some time after the conclusion of all the testimony,and before the jury was charged (italics added), the Court inspected the crossing in question, without the knowledge of counsel in the case and without the presence of the jury. The first notice which counsel for the defendants had of the fact that the Court had visited the premises, and inspected the crossing in question was that contained in the remarks of the Court, made in refusing the motion for new trial after all arguments for and against this motion had been concluded."
Counsel for respondents, who now present the petition for rehearing, agreed in writing to this statement as a part of the return upon which the appeal was heard. They cannot now contradict it and say it was error for this Court to rely on it.
However, if the utterance complained of were omitted from the opinion of the Court, it would not affect it, because that opinion is predicated upon the fact that the Circuit Judge based his order refusing the motion for new trial upon what he saw upon his view of the premises. At page 283 of the transcript of record, folios 1129-1131, he said *Page 240 this: "I drove by the place just to see if I had it figured out clearly in my mind, I thought I knew that crossing like a book, and I thought I could make a plat of it with my eyes shut, but I found there were several errors I might have made with reference to the point of compass."
This does not tally with the suggestion in the petition for rehearing that the Judge looked at the premises on his way from home to Orangeburg.
The remainder of the Judge's remarks were in reference to the place of the flagman, and show unmistakably the extent to which his refusal of the motion for new trial was influenced by his view of the premises.
There is no merit in the petition for rehearing. It is refused.
MR. CHIEF JUSTICE BLEASE and MESSRS. JUSTICES COTHRAN, STABLER, CARTER and BONHAM concur.