I concur in the action *Page 573 of the majority in overruling the motion for rehearing in this case, but in nothing else contained in their opinion.
I cannot concur in the additional conclusion of fact found by them, to the effect that there is legal evidence in the record to support a verdict finding that Joe Johnson had knowledge, or had been informed, of the reckless character or reputation of Roberts as a conductor, prior to the accident in which he received his injuries. There is no evidence in the record, in my opinion, to support this conclusion.
Frank Witherspoon's evidence on that subject is on page 55 of the transcript, and is as follows: "I testified on the other trial of this case, at a former term of this court. I testified then that Roberts, the conductor in charge of the other train, had a reputation of being a reckless conductor. He has got the reputation. When first on the stand at the former trial, I testified that before this wreck occurred in which Johnson was hurt, I heard Johnson mention that reputation of Roberts as a reckless conductor. I made that statement. I made another statement afterwards." Re-direct examination: "I made a statement that Johnson and me had a conversation about that, about Roberts being a reckless conductor, before the accident. Well, I could not tell exactly now whether it was before or afterwards. It has been two or three years ago. Cannot say now whether this statement I had with Johnson as to Roberts being a reckless conductor was before or after Johnson was hurt."
The majority of this court, in their opinion on this motion, after quoting substantially Witherspoon's evidence bearing on the question, raises a new issue not involved in any assignment of error made by appellant, or in the certificate of dissent, and that is the credibility of Johnson. He stated: "I am satisfied that it was after the accident that I had a conversation with Witherspoon in regard to Roberts' reputation as a reckless conductor." Johnson in another part of his testimony denies emphatically that he knew or had ever heard of Roberts' reputation as a reckless conductor prior to the accident. It will be observed that there is no contradiction in the evidence of Johnson and Witherspoon, and that referred to by the majority arising out of the evidence of Johnson and Ward has no reference to the issue in controversy, and is not material thereto.
This is all the evidence in the record tending to establish that Johnson either knew or had been informed of Roberts' reputation for recklessness prior to the accident, and I think it amounts to absolutely no legal evidence. It might raise a suspicion that Witherspoon had made a mistake in a first statement he made on a former trial, but he explains by stating that at that time he "made another statement;" and the inference is clear that he was recalled to the stand and corrected his first statement before the evidence was closed. At all events, he refuses to testify that the statement first made by him was true, but distinctly states on this trial that he does not know whether the conversation with Johnson was before or after the accident. I am unable to understand *Page 574 how such evidence as this can be relied on by any court to support any finding or verdict.
In the original opinion in this case, the majority of this court (myself dissenting) based its decision of this question on the fact that Roberts' general reputation for recklessness was competent and sufficient evidence to support a finding by the jury that Johnson knew of this reputation, while I held that it was not. The Supreme Court having sustained my opinion on this point, the majority now seek to base an additional conclusion of fact upon evidence less reliable and more objectionable, if possible, than evidence of general reputation.
Our Constitution provides that the findings of fact by this court are conclusive upon the Supreme Court, and it is therefore of the utmost importance to all that such findings shall be supported by sufficient competent evidence. I think it is a question of law whether there is any competent and legal evidence to support a conclusion of fact found by this court; and where a dissent in this court against such a conclusion is based upon such grounds, I think it raises a question of law, and is one, if not the only, way in which the Supreme Court can be required to examine the statement of facts. So believing, I feel warranted in entering this dissent, because I think there is absolutely no legal or competent evidence to support this additional conclusion found by the majority on this motion.
Rehearing denied and judgment affirmed.