The appellant moved for a rehearing.
In support of the motion there was a brief by Spooner & Rosecrantz. They contended that the appellant is entitled to a mandate directing the trial court to enter judgment in its favor upon the uncontradicted evidence. (1) The evidence that the hopper was only about half full, and that as a result of that condition there was no reason for any person to be in the hopper, was entirely undisputed; and there was-an utter failure on plaintiff’s part to prove the essential fact that Ilartkopf, in the exercise of ordinary care, should have-anticipated the presence of the deceased in the hopper. (2) Conceding the correctness of the construction given to-Ilartkopf’s testimony, there was still nothing to support the-finding of his incompetency. Evidence of a criticism or rep-*222rimancl was admissible only for the purpose of showing notice to defendant, and did not tend to establish the ultimate fact of incompetency. Chapman v. E. R. Co. 55 N. Y. 579; McDermott v. H. & St. J. R. Co. 87 Mo. 285; International & G. N. R. Co. v. Tarver, 72 Tex. 308.
For the respondent, in opposition to the motion there was a brief by J. C. Officer, attorney, and Hoyt, Doe, Umbreit & Olwell, of counsel.
The motion was denied Tune 10, 1904.