*137ON PETITION EOR REHEARING.
Potter, Justice.Counsel for defendant in error has filed a petition for rehearing in this case. We have carefully considered the able brief filed in support of the petition, but remain convinced that the questions discussed in the former opinion were properly disposed of, and we deem it unnecessary to again state the reasons for the conclusions announced. The additional point is now made for the first time in this court that the statements made by the mine superintendent and hoistman to the plaintiff explaining the cause of the accident should have been excluded as incompetent. It is true that the testimony of the plaintiff concerning those statements given upon his direct examination was admitted over the objection of the defendant, but the same facts were again testified to upon his cross-examination, as shown in our former opinion, and all his evidence relating to such statements was in the case'when the motion was'made and sustained for a directed verdict. It does not appear that such motion was sustained on the ground of the incompetency of the statements aforesaid, but on the contrary we think it appears that the verdict was directed upon the ground of the insufficiency of the plaintiff’s evidence to establish his right to recover. Therefore, if it should be conceded that such statements were erroneously admitted it is doubtful if it would be proper in this court under the circumstances to exclude the same from consideration in disposing of the case. To now hold that such evidence was improperly admitted and affirm the judgment on that ground would deprive the plaintiff of the right to furnish other evidence upon the subject, if any should be available; a right which he would have had if the evidence had been excluded or stricken out upon the trial. Again to exclude it from consideration at this time would render the error in confining the showing as to the condition of the machinery to the day of the accident even more prejudicial than with the evidence of such statements in the case.
*138But if this testimony of the plaintiff should be held to be. incompetent and therefore excluded, it would not follow that the judgment ought to be affirmed, for the evidence tending to show the incompetency of the hoistman and the negligent failure of the defendant to provide for the testing of the hoisting machinery was sufficient to require the submission of the case to the jury; and the error in excluding the offer of the plaintiff to show the condition of the maT chinery before the day of the accident would constitute a further ground for reversal. We do not decide the question of the competency of the statements made by the mine superintendent and hoistman to the plaintiff. Upon a new trial that question can again be presented and determined, and if the evidence should then be excluded the plaintiff will not be misled. A rehearing will be denied.
Beard, C. J., and Scott, J., concur.