If the testimony of the motorman, a witness for the defendant, which the plaintiff quoted in his motion for rehearing *Page 369 was the truth of the occurrence, applying it to the principle that "until such time as the risk of collision becomes imminent, and thereby destroys the basis of the assumption, a motorman has the right to anticipate that an automobile approaching from the opposite direction on the car track will turn off the track in such time as to avoid harm, and may govern his conduct by such justifiable expectation" (3 Blashfield's Cyc. of Auto. Law and Practice, 313, § 1930), there could still be no recovery. While the testimony of the witnesses for the plaintiff and the defendant was conflicting, yet under neither could the plaintiff recover.
Rehearing denied. Sutton and Gardner, JJ., concur.