ON REHEARING.
AILSHIE, J.This is a companion ease to the case of Maloney v. Winston Bros. Co., ante, p. 740, 111 Pac. 1080 just decided. A rehearing was granted in this case for the same reason that a rehearing was had in the Maloney case. The accident here involved occurred in the same tunnel where the injury occurred in the Maloney case. The circumstances under which the accident occurred differ slightly in this case from the other case. 'The law applicable here, however, is the same as the rule applied in the Maloney case, and upon the authority of that case the judgment in this case as modified on the original hearing will be affirmed.
It can serve no useful purpose for us to again review the evidence in this opinion, as we are satisfied that there was sufficient evidence to justify the jury in concluding that the master was guilty of negligence and that the servant was entitled to recover for the injury sustained.
The judgment will be affirmed to the extent of $12,000, on condition that the respondent file within thirty days after the going down of the remittitur a waiver of the excess of $8,000 and an acceptance of the judgment in the sum of $12,000 as thus modified. Upon failure to accept the judgment as modified, it will be reversed in tato and a new trial granted. Modified and affirmed accordingly, with costs in favor of the respondent.
Sullivan, C. J., concurs.