ON MOTION FOR REHEARING.
Smith, P. J.The plaintiff’s insistance now is “that the opinion is based upon the case of Fugler v. *263Bothe, 117 Mo. 475, which has been overruled by that of Settle v. Railway, 127 Mo. 336."
—: -: -: In view of the facts of the latter case as in the opinion they are stated to be it is quite difficult to harmonize the rulings made in the one case with those in the other. It is possible the learned judge in writing the opinion in the latter case did not then have in his mind the rulings made in the former case. As no mention is made in the opinion of the former case we are not inclined to think that it was intended to overrule it, since the writer of that opinion in the later case of Steinhauser v. Spraul, 127 Mo. 541, is reported to have agreed to the third paragraph of Judge Sherwood’s opinion wherein Fugler v. Bothe is not only cited but the principles therein announced are applied and enforced in their most comprehensive scope.
If the doctrine of Fugler v. Bothe was overturned by Settle v. Railway it was restored and vitalized by the ruling in Steinhauser v. Spraul.
The motion must therefore be denied.