I am in accord with Judge WALKER in the view that the judgment of the trial court in this case should be reversed and the cause remanded. But, because of the importance of the question, as I see it, I desire to add to what Judge WALKER has said these few remarks:
It is my opinion that in order for a plaintiff to predicate a cause of action against a street car carrier of passengers on its failure to have a conductor on the car, in addition to the motorman, the plaintiff's petition should be required to state specifically and definitely the facts which he contends required the presence of a conductor on the car at the time in question, and these facts should be sufficient to show with reasonable probability that the car could not have been operated by the motorman alone, in the exercise of due care on his part, with safety to passengers. In other words, the facts stated should be such as to show with reasonable probability that the exigencies and emergencies at the time in question were such that the motorman could not have been reasonably expected, in the exercise of due care on his part, to operate the car with safety to its passengers, he presuming due care on their part.
In addition to this, the facts stated, and not the mere conclusions of the pleader, should be such as to show that the absence of a conductor at the time was the proximate cause of the plaintiff's injury, as the term "proximate cause" is understood in law.
I have offered these few remarks because I do not believe that it should be left to a jury to find a street car carrier of passengers guilty of negligence because of its failure under any and all circumstances to have a conductor on its cars. If such latitude were permitted to the ordinary jury, the practical effect probably would be to compel such carriers to man all their cars with both motormen and conductors under any and all circumstances, whether due care required it or not, and this would be unreasonable and unjust, and, therefore, cannot be sanctioned in law.
On Rehearing.