Supplemental opinion on rehearing.
Evans, C. J.I. The plaintiff calls our attention to the fact that in the original opinion we did not formally rule upon his cross-appeal. What we did say was necessarily determinative of the cross-appeal adversely to the plaintiff. The plaintiff urges upon us a reconsideration of our former opinion insofar as its conclusions are fatal to his cross-appeal. His argument is that upon the testimony of Newgren and Brundage and, Wright alone, disregarding wholly the evidence of Hooyer, he was entitled to go to the jury on- the theory that Graham was on the steps of the second or third car from the engine, and that Brundage saw him there. This is based (1) upon the testimony- of Brundage that .he -and Wright went through the vestibules of the three sleepers, looking for trespassers, and discovered none; (2) upon the testimony of Newgren as to where he thought Graham was; and (3) upon the inference which the jury might draw that Brundage did see Graham on the second or third car from the engine, notwithstanding his denial. The testimony of Newgren upon which such reliance is placed is his following cross-examination: “Q. What car did you say Boy Graham boarded as the train pulled out of Oakley Avenue? A. I think about the second or third car from the front, from the engine. Q. That would be the first or second sleeper on the train? A. I don’t know how the train was made up. Q. If the train was organized with a buffet car and three sleepers, it would be the first or second sleeper that he got on? A. Tes, sir. Q. Tou are sure of that, are you? A. That is as near as I know. Q. You testify *619to that as a fact? A. Yes, sir. Q. And you are positive of that as you are of everything that you have testified to? A. Yes, sir. Q. That as you boarded the train that evening Eoy Graham was on the second or third car from the engine? A. To the best of my judgment. Q. That would be the first or second sleeper in the train? A. Yes, sir.”
3. Pleading: incosistent causes of action: submission of issues: prejudice. Newgren had testified on direct examination, not only that Graham was on the second or third car from the engine, as he believed, but that there were three cars between him and Hooyer and Newgren. Hooyer’s testimony was that there was one car only between them. This would put Graham on . the front end of the seventh car of the tram. Plaintiff’s petition expressly alleged that Graham was on “the forward end of the seventh car from the head end in said train.” He never receded from that allegation. The allegation was supported by Hooyer’s testimony and the case tried upon that theory. During the trial, however, and after the evidence had been heard, the plaintiff added to his petition an additional count wherein he alleged that Graham was on the second or third car, and that Brundage saw him there, and that Brundage was negligent in not attempting to rescue him. This count did not purport to withdraw or qualify any allegation contained in the former count. It was apparently intended to state an alternative case of negligence as a basis for recovery, so that, if he failed in his proofs upon the original count, he- might still recover upon the additional count on the theory that Brundage was negligent. The two were inconsistent, and the establishment of one necessarily negatived the other.
Whether the plaintiff was entitled to have them both submitted to the jury in the alternative, or whether the. court could and should have required him to elect, at the close of the evidence, upon which count he proposed to *620stand, we need not now determine. The court did withdraw from the consideration of the jury the charge of negligence made in the additional count against Brundage, and submitted the case as made by the original count of the petition. If the jury had found adversely to the plaintiff upon this count, he might be in a position to say that he was hurt by the refusal of the court to submit the other count, and that the jury might have returned a verdict in his favor ujion that count. But the jury found in his favor upon the original count. The finding -of the jury sustaining that charge of negligence was equivalent to a negative finding on the other. Both could not be true. In rendering a verdict for the plaintiff on the case as submitted to it by the instructions of the court the jury necessarily found that Graham was at the front end of the seventh car. They found, therefore, that he was not on the second or third car. Brundage, therefore, could not have been found guilty of negligence upon such finding, even though the court had submitted the issue of his negligence to the jury in the alternative.
Plaintiff argues on the theory that the jury had no chance to pass upon Newgren’s testimony in cross-examination, and that they might have found upon such testimony that Graham was on the second or third car, instead of on the seventh. But the court did not withdraw such issue from the jury. It only withdrew from the jury the question of the alleged negligence of Brundage. The issue of whether Graham was on the front end of the seventh car or whether he was two or more cars further ahead inhered in the case as made by the original count, and as submitted to the jury by the court. The jury had the testimony of Newgren and Hooyer on that question. The burden was upon the plaintiff to prove upon what part of the train Graham was. Unless it was proved that he was on the front end of the seventh car, plaintiff had no case under the original count. Newgren testified to his judg*621ment that he was further forward in the train. If the jury had accepted the testimony of Newgren in this respect, it would have been fatal to plaintiffs original count. The verdict of the jury was therefore equivalent to a finding on this specific fact. With this finding of fact the charge of negligence against Brundage necessarily went down, and the plaintiff suffered no prejudice by the failure of the court to formally submit to the jury the question of such negligence on the part of Brundage. Assuming for the sake of the argument that the trial court could properly have submitted plaintiffs case in the alternative upon inconsistent allegations, surely no trial court would have done so without requiring a special finding indicating upon which ground the verdict for plaintiff was rendered. Plaintiff’s position on this record is precisely the same as though such course had been followed. It is manifest, therefore, that, even if the court erred' in withdrawing the additional count from the jury, the error was cured by a favorable verdict upon the original count,
4. Same: withdrawal of issues. II. We may say further that in our opinion the trial court did not err in withdrawing the additional count from the jury. We must review the action of the trial court in the light of the whole record before it, in-eluding the evidence of Hoover, which has been considered by us in the original opinion. The plaintiff’s argument on rehearing is based upon the supposition that the evidence of Ilooyer has been wholly obliterated by the conclusions announced by us in the former opinion. Wé are asked, therefore, to disregard it in toio, and to consider the case solely in the light of the testimony of Newgren, Brundage and Wright. The part of the evidence of Hooyer that was held to be impossible in the former opinion was that part thereof wherein he claimed to have seen Graham through the vestibule door at the front end of the seventh car, although he made no attempt to rescue him nor to communicate the fact to *622the others who were with him, but went forward with the conductor to the front end of the sixth car for the purpose of rescuing him there. The plaintiff, however, is not entitled to have his evidence disregarded in tolo, nor was he in a position to ask the trial court to disregard such testimony either in whole or in part. The only evidence offered by plaintiff in support of either charge of negligence was that of Hooyer. This evidence directly contradicted the essential fact upon which the charge of negligence in the additional count was based. Clearly the court had 'power of discretion to refuse to permit such an amendment to be filed, and it had like power to strike the amendment after it was filed. Whether the court could properly submit in the alternative two contradictory claims or theories in behalf of a party having the burden of proof we do not now determine. It is clear to us that it was not bound to do so. It may be that its refusal to do so would entitle the plaintiff to an election as to which ground he would stand upon, but there was no offer or suggestion of an election in this.case. In overruling defendant’s motion for a directed verdict, the court announced that it would not submit to the jury the issue presented 'by the amendment. To this announcement the plaintiff excepted. In its instructions later the court withdrew from the jury the charge of negligence against the brakeman, Brundage. No exception was taken to this instruction by the plaintiff. It may be that the announcement of the court ought to be regarded as sustaining defendant’s motion to that extent, and that an exception at that point was sufficient. In any event, we have assumed the exception to be sufficient for the purpose of his appeal. It is evident, however, that, if plaintiff preferred to submit the case to the jury upon the other theory, he had abundant opportunity to so elect. He took a submission of his case upon the original count, and his position is quite the same under the circumstances of this case as though he had formally elected to stand *623thereon. From the verdict rendered it is manifest that he must have been beaten by the jury if the case had been submitted upon the other theory. So that, if we should assume-the correctness of plaintiff’s contention, that there was sufficient evidence to go to the jury in the testimony of Brundage and Wright and Newgren alone, it could avail him nothing in the face of the actual finding of the jury.
In this discussion we have confined ourselves to a consideration of the case as it was before the trial court. Plaintiff’s argument ,on rehearing is somewhat anticipatory, and is directed to a supposed situation which may arise in the future. We cannot follow the argument into that field. Whether it is possible for the plaintiff to recast his issues and his evidence for a future trial is a speculation into which we cannot properly enter. Certain it is that the questions already decided by this court in the opinions on the two appeals must be deemed as the law of the case for all time so far as those questions are concerned.
The former opinion is adhered to with this modification: That it is now formally ordered that the case be affirmed on the plaintiff’s cross-appeal, and reversed on defendant’s appeal. — Reversed and remanded.