ON MOTION' FOR REHEARING.
Per Curiam.— In the motion for rehearing plaintiff’s counsel lay stress on the observation of the court that the original conclusion in the case was expressed “with some misgivings.” Prom that remark it is argued that the question of defendant’s negligence is one about which fair minded men might differ, and hence that it is one for the jury as a question of fact.
The “misgivings” of the court were as to whether or not the ease was clear enough to warrant the decision of the issue of defendant’s negligence as a matter of law. We do not dispute in the slightest the rule plaintiff asserts, as to the right of plaintiff to have the benefit of the most favorable view of the facts that may reasonably be taken of them. Giving plaintiff the benefit of that view, we had some doubts as to whether or not plaintiff had a case properly entitled to be submitted to the jury on the question of defendant’s negligence. We finally reached the conclusion *97that she had not such a case, after giving the facts the best consideration we could. We did not intend, in announcing that result, to intimate any denial of the rule invoked by plaintiff touching the state of facts necessary to warrant the judgment originally ordered on this appeal.
But the question whether or not in any case given testimony tends to prove negligence is a question for the court. And though it may sometimes be difficult of solution, the court is bound to solve the difficulty as best it can, and declare its ruling accordingly. This division did so; and on reconsideration of the subject adheres to the judgment first announced. The motion for rehearing is overruled, with the concurrence of all the judges of the first division.