On a motion for a rehearing, respondent’s counsel argued that tbe court bad overruled, by tbe above decision, that made on tbe former appeal, and which must be regarded as tbe law of tbe case; that both tbe cburt below and this court then held tbe suit to be against defendant as a common carrier ; that if tbe amendment of the complaint changed tbe action in that respect, it was a change from an action on contract to one for a tort, and tbe amendment was improperly allowed. Sweet v. Mitchell, 19 Wis., 524. They also argued: 1. That tbe jury, and of course tbe court, is bound, as a matter of law, so to construe evidence (if possible) as to make all parts agree, and avoid tbe imputation of perjury; and that positive evidence that a thing was done always overrides negative evidence that tbe witnesses did not see, or know, or bear, that sucb a thing was done. Moreover, a party who deliberately introduces testimony, knowing what it is, cannot say that bis witness was perjured and unworthy of belief as to bis testimony against such party. Tbe jury would therefore not have been at liberty to weigh tbe credibility of Search, who testified positively as to tbe ringing of tbe bell, against that of plaintiff’s other witnesses, who merely testified that they did not bear or did *688not remember it. Greenl. Ev., 442. 2. If the plaintiff did not (as her own testimony shows sbe did not) leave the car witbin the time which passengers ordinarily require for that purpose (Ill. Cent. R. R. Co. v. Buckner, 28 Ill., 303; Ch. & R. I. R. R. Co. v. Still, 19 id., 508), she violated her contract ; and if her default in that respect contributed to the injury, defendant is not liable. There was no proof that it is customary for railroad companies, on their own grounds, to ring the bell, upon backing a train, for the protection of interlopers or of passengers who by their contract are bound to be, and are supposed to be, off the train. And if the question what was negligence in such a case is matter of law,. this court knows that a railroad or any other company may, upon its own grounds, run a train back or forward as it pleases, without taking any precautions; and that if any person complains of such running, he must ground his action upon some contract violated by the company and not violated by the complainant. To this point counsel cited the cases referred to in the opinion below.
Paine, J.A motion for a rehearing was made; and, as is quite usual, counsel think we have not only violated the former decision of this court in this case, but also the uniform decisions of other courts. "We have, however, carefully examined the argument without coming to that conclusion. The claim that we have overruled the former decision of this court, is based on the assumption that it was then decided that the plaintiff’s cause of action depended entirely on the existence of the relation of carrier and passenger at the time of the injury. But an examination of the case, reported in 20 Wis., 344, shows that no such proposition was decided. On the contrary, it appears that the circuit court having held that, on the pleadings, the cause of action depended on the existence of that relation, this *689court reversed the judgment for what were held to be erroneous rulings upon that assumption. But whether that ruling of the circuit court was itself correct or not, was not decided, nor was any intimation given upon it. And the appeal did not present that' question. That ruling was against the plaintiff, and the report does not show whether her counsel excepted to it or not. But whether he did or not, the verdict having been in her favor, and the appeal taken by the defendant, the correctness of that ruling was not in issue on the appeal. But it appears from the same report that the learned counsel for the defendant then held the same view in regard to the plaintiff’s right of action, which is indicated in the last opinion of this court, now so severely criticised. Eor it shows that they then asked the court to instruct the jury “ that if the relation of common carrier had ceased, the defendant was liable only for want of common care.” This is precisely what we have held in the opinion already filed. Counsel also claim the law to be, that “ a railroad company or any other company may, upon its own grounds, run a train back or forward as it pleases, without taking any precaution, and that if any person complains of such running, he must ground his right of action upon some contract, violated by the defendant and not violated by the plaintiff.” And they cite in support of this proposition the following eases: Deyo v. Railway Co., 34 N. Y., 9; Chamberlain v. Railway Co., 7 Wis., 425; Stucke v. R. R. Co., 9 Wis., 202; Chamberlain v. Railroad Co., 11 Wis., 238; Ch. & N. W. R. R. Co. v. Goss, 17 Wis., 428; Ch., B. & Q. R. R. v. Hazzard, 26 Ill., 373; and Railway Co. v. Aspell, 23 Pa. St., 147. If these cases sustain the proposition, I am wholly unable to discover it. And I should be unwilling to assent to it except upon the compulsion of such an array of authorities as ought to be deemed conclusive. But I think no case can be found sustaining the proposition *690that a railway company may, upon its depot grounds, run its trains backwards and forwards as it pleases, without any precautions, and not be liable for any injuries inflicted, unless the injured party bad some contract which was violated.
By the Court. — -The motion for a rehearing is overruled.