ON REHEARING.
Opinion by
Mr. Justice Gunter:Counsel for appellee, in their brief in support of the petition for a rehearing, say:
“Several days after the expiration of the ten-day limit, counsel for the company, without having applied for, or obtained, any extension of time, filed an entirely new reason for a rehearing, based on the said dissent (that of Mr. Justice Campbell) and claiming that the decision by the two justices was illegal.”
The facts show counsel in error in this statement. Upon the original hearing an opinion was *559handed down, joined in by only two justices, affirming the judgment below. Within the ten days ’ limit a petition for rehearing was filed by counsel for appellant company. Within six days after the filing, of this petition counsel 'filed a motion for leave to assign an additional reason as a ground for rehearing. This ground was the constitutional one stated in the main opinion. Of this application counsel for appellee had notice, and upon the day noticed an order was made permitting the amendment of the petition for rehearing. The application for leave to amend, and the order permitting the amendment, were made before the petition for rehearing, had been considered or decided by the court. The practice of allowing such amendments is a usual one with this court, and we can conceive no reason why it is not in the interest of justice and should not be pursued. Certain it is, appellee sustained no prejudice from it, because the original opinion, being upon its face in plain violation of the constitution, was- a nullity. The court was without power to hand down a decision concurred in by only two justices. The court would have ordered a rehearing on its own motion.
Two. Counsel for appellee, as a further ground for rehearing, say:
• “We charge that the evidence in the case was so clear, so strong, so conclusive that the plaintiff was in law entitled to recover no matter what errors might have been committed by the trial court in its instructions or otherwise, provided it did not rule out competent evidence offered by defendant.”
The location of the crane unnecessarily near the track, and negligence in such location, was a vital issue. There was evidence for plaintiff that the arm of the crane came within 4-¡- inches of the window of the cab, that this was unnecessarily near, and that defendant was guilty of negligence in so locating the *560crane. There was evidence for'tire defendant that the clearance of the arm of the crane was ten inches, that such proximity was necessary for the efficient operation of the appliance, and that defendant was not guilty of negligence in’its placing. Vital issues of fact were thus presented for the determination of a trial court and jury, and this court cannot sustain a judgment resting upon a determination of such issues unless such issues were properly submitted to a jury, which we have attempted to show in the main opinion they were not.
Three. It is next contended that no error was committed in the rulings upon evidence discussed in the main opinion, because counsel say that such evidence was inadmissible, and for the further reason, that all of the evidence so excluded was substantially admitted, or that defendant had the opportunity to introduce it. The only cause of action in support of which there was any evidence was, that the crane was located unnecessarily near the track, and that defendant was guilty of negligence in such location. A catcher of the length prescribed by the postoffice department was provided by the government, and the crane was constructed and located by defendant road. The combined appliance, the catcher and the crane-,' was a necessary instrumentality in railroading; it was made up of the catcher and the crane, so constructed and located with reference to each other that the combined appliance would operate efficiently. It required skill and experience to determine how this combined appliance should be put up, that is, it required skill and experience to determine how far the crane should be removed from the catcher. It was, as stated, incumbent upon the plaintiff to show that the defendant had located the crane- unnecessarily near the track, and that it was guilty of negligence in having done so. To prove this issue, rail*561way mail clerks, of years of experience on tlie B. & M. R. R., and other roads, testified as to the identity of the catcher on all roads; that the cranes were substantially the same; that the cranes on the B. & M. road, and other roads, were further removed from the track by several inches than the one involved herein; and that the combined catcher and crane in such instances worked efficiently. They further said that a catcher identical with the one involved in this case would efficiently take mail suspended a number of inches further from the track than the evidence for plaintiff tended to show the crane herein was located, and further than the evidence for defendant tended to show it was located. Their evidence went to the custom of construction, location and operation of cranes on other roads. This evidence, it seems to us, was clearly competent as tending to show that the crane in this case was located unnecessarily near the track, and that the defendant was guilty of negligence in its location — that is, that it was guilty of negligence in the construction of the combined appliance. The witnesses who spoke from their experience on the B. & M. road spoke practically from experiments. If this evidence was admissible for the plaintiff, which we think it was, it was competent for the defendant to disprove it. If so, it was competent for the defendant to show that the cranes on the B. & M. road were not located as such witnesses testified, but as the defendant’s crane was located. It was also competent for the defendant to show, not as controlling, but as bearing on the question of negligence, how cranes were located customarily on other roads. We think this class of evidence was erroneously excluded. If the crane located as defendant’s evidence tended to show that it was— that is, so located as to bring the arm not nearer than ten inches to the cab — was not negligence per se, it *562was error to exclude evidence of the custom of other roads as h> the location and operation of their cranes. "We cannot declare as a matter of law that the location of the crane so as to bring the end of the arm within ten inches of the cab was negligent per se. Whether such location was negligent would depend upon whether it brought the arm of the crane unreasonably and unnecessarily near the cab for the efficient operation of the appliance. If it was unreasonably and unnecessarily near for the efficient operation of the appliance, there was negligence, otherwise not. As stated in the main opinion, the mere fact that it was dangerously near did not constitute per se negligence.
The prejudice from the rulings of the court sustaining plaintiff’s objections to questions put to the witness Perry, and cited in the main opinion, was, in a measure, but not entirely, cured by subsequent testimony from that witness. Such. evidence, however, of that class as did come in from that witness came in under the condemnation of the court and with its credibility impaired. Some testimony of this nature came in from the witnesses, Quereau, Mettler and Lawhead, but what other testimony counsel would have introduced we know not. At no time did the court recede from its position that this class of evidence was inadmissible. At no time did the court announce that it would receive this class of evidence. The court did announce when the defendant was introducing evidence going to contributory negligence, assumption of risk, and the rules of the company, that it would not limit it as to the number of witnesses; hut it did not say that it would permit the introduction of evidence which it excluded as discussed in the main opinion. The prejudice from the exclusion of this class of evidence is not measured simply by the rejection of the evidence. The court *563in ruling announced as its reason for the exclusion of the evidence that there was no evidence of negligence in the location and maintenance of the crane. This view of the law was reiterated more than once in the course of the trial. Counsel for defendant was thus justified in believing that this issue would not go to the jury and in offering no evidence upon it. What evidence he failed to offer we linow not, he was justified, we repeat, in offering none. The only cause of action to sustain which there was any evidence was thus withdrawn from the jury, and the defendant was justified in offering no evidence in resistance of it. A verdict for the plaintiff with such condition of the record cannot stand. Defendant has not had its day in court on the only cause of action to sustain which there was any evidence for plaintiff.
Error in refusing tendered Instruction 6, discussed in the main opinion, was not cured by the givv ing of Instruction 20. According to the refused instruction a verdict should go for the defendant if plaintiff failed to prove her case of alleged negligence by a preponderance of the evidence. Prejudice from the failure to give the instruction was not cured by Instruction 20 given, “wherein the jury is charged that proof of contributory negligence would entitle defendant to a verdict. The law presented by the one instruction was not covered by the other.
Since' the incoming of the petition for a rehearing as to the last opinion handed down, we have reread this voluminous record, including briefs of counsel, and are still fixedly of the opinion that the judgment should be reversed.
Petition for rehearing denied.
Decision en banc. Denied.
The position of Mr. Justice Steele remains the same as in the original opinion.