MOTION FOR REHEARING AND TO TRANSFER TO COURT EN BANC. Respondent filed a motion for rehearing wherein it is contended that the opinion in this case is erroneous in holding that respondent had failed to make a case for the jury. It is charged that as to the character of the place where respondent fell and as to the knowledge of the danger, the writer of the opinion overlooked controlling evidence in the record. Upon a reconsideration of the evidence we fail to find anything to change our views. We deem it unnecessary to add anything to what was said in the opinion with reference to the place where respondent and the rock fell from the cliff. The other question, that is, the failure of the city to place warning signs advising of the danger, was disposed of rather briefly in the opinion. Warning signs only serve to notify persons of an existing danger. If the danger is known a warning sign is useless. The main opinion holds that the cliff itself was notice of danger. In addition to that let us see as to respondent's actual knowledge of the danger. We quote his testimony: *Page 782
"Q. And were you watching your footing as you stepped along there to see that you didn't disturb any loose rock? A. I don't remember. I wasn't thinking about loose rock then.
"Q. When you would take ahold of a rock to go around it, did you make any effort to see whether they were loose or not? A. No.
"Q. Did you see any loose rock in the park at all? A. Yes, I saw a lot that had fallen down around the benches there.
"Q. You saw one rock, you say? A. A lot of them.
"Q. At the foot of the cliff? A. Yes.
"Q. How do you know they had fallen down? A. You could see them all around there.
"Q. And you knew that they were rock that had fallen from that cliff by where they lay then? A. Yes, and where the benches were turned over, too.
"Q. And you saw all of those before you fell, of course? A. Yes.
"Q. Because you were unconscious after you fell? A. Yes. . . .
"Q. Of course, you knew if one of those rocks came loose, you might fall and be hurt, didn't you? A. Yes.
"Q. And you knew that all those rocks at the bottom had fallen before you went up the cliff, didn't you? A. Yes.
"Q. You knew they had fallen from that cliff? A. Yes.
"Q. That is the only place they could have come from, isn't it? A. Yes.
"Q. You knew that? A. Yes."
[5, 6] It is evident from the testimony quoted that respondent knew and fully realized the danger, and therefore warning signs would have been of no benefit to him. The failure to warn had no connection with the injury respondent received. In the motion for rehearing respondent urges that he did not fall from the cliff, but that a falling rock struck him and knocked him from the cliff. This assertion is not justified by the evidence. Respondent's own evidence disclosed that as he was scaling his way around the cliff he held to rocks to keep from falling. One of the rocks came loose while respondent had hold of it and both rock and respondent fell. It is evident that the rock fell because it was pulled loose or overbalanced by the pull of respondent as he was scaling around the rock. All of the facts that we have referred to in the main opinion and in these comments were shown by evidence introduced by respondent. The motion for rehearing and the motion to transfer to court en banc are hereby overruled. *Page 783