UPON PETITION FOR REHEARING.
Sims, J.:We are asked to reopen this case upon certain questions of fact, and certain portions of certain testimony is specifically called to our attention, and certain inferences of fact are sought to be drawn therefrom; but as none of such testimony was overlooked in reaching the conclusions announced in the original opinion, the situation merely being that there is direct evidence for the plaintiff in the record in conflict with such inferences, so that they could not be drawn by us on our consideration of the case upon the demurrer to the evidence which was interposed by the defendant, the prayer of the petition must be denied.
For example, upon the chief question of fact put in issue by the position of the petition, that “Minor was not south, but eighteen feet west of Ledford at the time of the accident and Ledford was then looking sideways and not backward over his shoulder,” the following extracts are quoted in the petition from the testimony of Minor, a witness for the plaintiff:
“Q. Tell the jury how that occurred as you saw it?
“A. Well, I was framing a flat car, that is, standard-gauge car, and I was down in the comer of this car putting in a truss-rod. I had not heard any train or anything of the kind until I heard some one holler. When I raised up, the train was in something like eight or nine feet of Led-ford, and he was going up meeting the train about the middle of the track, and it struck him.
*117“Q. How close were you to the track and to this train when it struck Ledford?
“A. 1 believe, the best I remember, it was eighteen feet; I measured it once, and I believe it was eighteen feet. * * * “Q. Tell when you first observed, if at all, the engine slacking up or slowing up.
“A. I could not tell from where I was working there at the sand-house at the end of the car sitting on a temporary track by the side of the main line. When it struck Ledford it was only about eight feet until it knocked him out of my sight behind the sand-house.”
Minor does here state, in substance, that he was eighteen feet from the track and the train when it struck Ledford; and also that when the train struck Ledford “it was only about eight feet until it knocked him out of my sight behind the sand-house.” And if this testimony stood alone, the reasonable inference to be drawn therefrom would be that Minor testified that Ledford was struck by the train at a point on the track west of and at right angles from Minor. But this testimony does not stand alone. Minor was there testifying without the map or diagram made by Estep being before him, and his reference to the distance of “eight feet” that Ledford was knocked so as to pass out of his sight was but an estimate, and an estimate not in accord with other testimony in the case for the plaintiff. Subsequently, on cross examination (p. 21, record), there are the following questions and answers of Minor.:
“Q. Mr. Minor,. I wish you would step up to the jury and show them just where you were working, on this little map, please sir. This is supposed to be the main track and the engine was backing down this way, and this is supposed to be the spot where Mr. Ledford was struck; that is the sand-house, and this is the blacksmith shop. Where were you working?
*118“A. I was betwixt the shop- and. the sand-house building a car.
“Q. Eighteen feet from the-point where he was hit?
“A. Yes.”
Now, the map referred to in the testimony of Minor just quoted was the map or diagram made by Estep which was in evidence for the plaintiff, and is shown in the,statement preceding the original opinion which we have handed down in this case. On that diagram itself the point was marked at which Ledford was when struck by the train, as testified to by Estep, by the very fact of his making the diagram and marking such point thereon and putting the map in evidence. On the same diagram itself was also marked the point at which Minor then was, as testified to by Estep by the very fact of 'his making the diagram and marking such point also thereon. These points, as marked on the map, furnished direct testimony for the plaintiff and an ocular demonstration that such direct testimony was that Ledford was some distance north of Minor at the time the train struck Ledford, -and that the former was not then at right angles to the latter; and it is apparent from the respective positions of the two as shown on such diagram that Minor was south of Ledford at the time of the accident, and that Ledford, to have looked, as he walked, at Minor must 'have been looking, not merely sideways (at right angles), but backward. And in Minor’s statement last quoted we have his direct testimony that he (Minor) was eighteen feet from the point where Ledford was hit, given while referring to the aforesaid map before him- on which the point where Ledford was hit was marked, as aforesaid. Again, the position of Minor,, as marked on said diagram, does not indicáte that he was as far as eighteen feet away from a point on the main-line track to the west and at right angles to him. Considering such evidence on demurrer *119thereto by the defendant, we could not escape the conclusion that Ledford was eighteen feet north of Minor at the time of the accident, and was then looking backward over his shoulder.
Of the other matters of fact discussed in the petition, we deem it sufficient to say that on a careful review of them we find that there is .ample testimony for the plaintiff in the record to sustain the conclusions we have reached and expressed in the original opinion.
Rehearing denied.