ON REHEARING.
What is said in the opinion with respect to defendants’ liability is predicated upon the case as made by the complaint — count 3, which was under consideration —wherein it is alleged in effect that Mr. Fries, at the invitation of whose daughter plaintiff took a seat in the carriage, contracted through his agent, the Gaudin Undertaking Company, with the defendants to furnish suitable horses, carriages, and drivers for carrying the funeral party from Birmingham to the cemetery named. Some of the evidence tended to support these allegations of the complaint and to show that the contract was, as alleged, between Mr. Fries and defendants, being made on the part of Mr. Fries by and through his agent, the Gaudin Undertaking Company, directly with defendants. The jury must believe this before plaintiff could in any event recover under the count named, as at present framed. On the other hand, the evidence for defendants tended to show that Mr. Fries contracted with the Gaudin Undertaking Company, and not with defendants, to furnish suitable carriages, horses, and drivers for the purpose named, and that the Gaudin Undertaking Company, in order to carry out its contract with Mr. Fries, hired for itself from defendants the carriages, horses, and drivers, which were sent to the latter’s undertaking establishment to be used as it might direct and were put under *340its control; defendants not knowing where they were going.
We did not, in the opinion, undertake to declare the law relative to the state of facts as contended for by defendants. That case is not before us, as there is no complainant here predicated on such a state of facts. Whether the plaintiff would have a case against defendants if the facts be as the latter’s evidence tends to show, or what would be the extent of defendants’ duty and liability to plaintiff, if any, in such event, are questions that were not before us and were not considered.
It may be further stated, in order to relieve other misunderstanding of counsel apparent from the briefs filed on application for rehearing, that likewise the question of the degree of care required of a private carrier in carrying its passengers is also one that is not presented by the record, and one that was not considered in drafting the opinion. Whether the law exacts of it and its servants, as in the case of common carriers, the observance of the highest degree of care to secure the safe carriage of the passengers it has undertaken to carry, thereby making it liable for slight negligence, or exacts of it only ordinary care to this end, thereby making it liable for only ordinary negligence on the part of itself and servants, is an open question in this state, which is not before us in this case, as said, and-which may never arise in it, and upon which we did not, therefore, intend to express any opinion. We have conseqeuntly revised the language of the several sentences in the opinion, Avhicli has given rise to the misunderstanding of counsel in this particular, fearing that, as it originally stood, it might also mislead others in the future.