Rutledge v. Missouri Pacific Railway Co.

on rehearing in banc.

Per Curiam.

— The court in banc approves the opinion delivered on behalf of the majority of the judges in division one, and adopts the same as the decision of the court,

all the judges concurring, except Macearlane, J., dissenting.

ON MOTION TO MODIFY JUDGMENT.

Per Curiam: (Black, C. J., and Brace, Barclay, Gantt, Macfarlane, Sherwood and Burgess, JJ.).—

On motion to modify the judgment, it has been suggested that plaintiff may have a cause of action upon further proof that the signal on which the engineer acted, originated with the yard-master.

Plaintiff hence prays that the judgment be modified so as tp remand the cause; and thus give him an opportunity to amend, and present that phase of the ease to the trial court, the statute of limitations having intervened as against any new action he might bring.

On consideration of this motion we are of opinion that it should be granted. Bowen v. Railroad (1893), 118 Mo. 541; Lilly v. Tobbein (1891), 103 Mo. 477. Accordingly the final judginent of this court will be that the judgment of the circuit court be reversed and the cause remanded.