Lead Opinion

*1707The opinion of the court was delivered by

Monroe, J.

Plaintiff, as the dative tutor of the minor, Louis Craig, claims that said minor was summarily and unlawfully ejected by a servant of defendant from its train, whilst the same was in motion, with the result that the car wheels passed over his left arm and so mangled it that amputation was necessary.

ILe alleges that the minor was guilty of no negligence, and that he has sustained damages to the amount of $10,000, for which he prays judgment. Defendant denies fault on its part and alleges that any injuries which the minor may have sustained, resulted from his own negligence, whilst trespassing upon defendant’s property. Taking the pleadings and evidence together, the case presented is as follows:

Not long before noon, July 11th, 1899, one of the defendant’s trains, consisting of an engine, baggage car, coach for colored people, coach for white people, arid sleeper, reached Shreveport and pulled into the Union Depot. The passengers and the baggage were soon discharged and the train backed in the direction of certain freight yards in order to be put in readiness to go out, according to schedule, in the afternoon. The defendant company is called the “Cotton Belt”, but, so far as the testimony goes, it appears that it went into Shreveport over the bridge of the Vicksburg, Shreveport & Texas Railroad Company, used the tracks of said company in reaching the depot, and in backing out, and that the freight yards into which it backed, and where it was to remain and be overhauled preparatory to its departure in the afternoon, were the yards of the same company; from which it would seem that the two roads are conducted under one management, or, and beyond any question, that they are working under an arrangement whereby the bridge, the tracks to the depot, and from the depot to the freight yards, as also the depot itself and the freight yards, are used in common.

Just before the train in question backed out of the depot, the boy, about fourteen years old, in whose behalf. the suit is brought, got aboard. He states that his purpose was to mail a letter, but that, not knowing where to mail it, he got off, when the train started, and then, when the train was in motion, seeing the mail box, or opening for letters, in the side of the baggage ear, he got on again, intending to ride to a street crossing, at which a stop was usually made, and avail himself of the opportunity to accomplish his mission. The theory of the defendant is, that his purpose was to steal a ride. There is some evidence cor*1708roborating the statement of the boy and some corroborating the defendant’s theory.

Pretermitting this question; it will be understood that, in backing, the position of the cars was reversed, and that, as the train was moved, they were in the following order, from front to rear, to-wit; sleeper, white coach, colored coach, baggage car, and engine, so that, accommodating this opinion to the testimony of the.witnesses, who spoke with reference to the manner in which the train was made up, rather than with reference to the direction in which it was going, the expression “rear platform”, and “front platform”, are to be taken in the opposite sense to that in which they would ordinarily be understood, with the engine in front. Bearing this in mind; the boy was on the lower step, either of the front platform of the sleeper, or of the rear platform of the white coach; and, whilst the train was moving at the rate of six or seven miles an hour, he either jumped, fell, or was forcibly ejected, in such a way that his left arm was so mangled under the wheels that amputation at the shoulder was necessary, and was performed, almost immediately.

This being the case, it is immaterial what may have been his reason for getting on the train. If he voluntarily jumped, or, through fault, or misfortune, of his own, fell off, he is not entitled to recover. Upon the other hand, if he was forcibly ejected, by any one for whom the defendant is responsible, he is entitled to recover; no matter why he got on the train, since there is no law authorizing the taking off of a boy’s arm at the shoulder as a penalty for trespassing- on railroad, or any other, property. We have, therefore, to consider the two questions of fact: (1) Did the boy jump, or fall, off; or, was he forcibly ejected? (2) If forcibly ejected, was it by any one for whom the defendant is responsible? There is more or less of conflict in the evidence, but the truth lurks in the midst of the conflict, and, though somewhat obscured, is not beyond the reach of deliberate and impartial investigation.

There are some white witnesses and some colored ones; some who are railroad men, and some who are not, and, without regard to these distinctions, there are some, and this includes the majority, who have stated the facts as they understood them, and to the best of their ability; and others, being a small minority, whose statements are irreconcilable with knowledge in their possession and with their want of knowledge.

*1709There is no question but that the boy was standing on the lower step of either the sleeper or the white coach, facing outwards; and that, whilst in this position, his feet, either voluntarily, or involuntarily, went out from under him; and that, after hanging and dragging a little, he fell under the car and received the injury of which he complains. His statement is as follows: “When we got in front of Ed. Wafer’s saloon, a white fellow came to the door and said ‘Get off’; I looked around at him and did not pay any attention to him, and I kinder looked again.

“Q. — And he hallowed at you?

“A. — Yes, sir; he said ‘get off here’, and I turned around towards the depot and then he kicked mo; and when he kicked my feet from under me, I held hold of that little tiring by the steps that you pull up with; I held hold of that with my left hand, but the train jerked me and I-had to turn loose, and it rolled over my arm. I was standing on the steps when he kicked.”

Elmore Jackson, Lewis Stephens and Henry Toney were standing in front of the saloon to which the boy refers. Jackson and Stephens testify positively that they saw the man, who is identified as Smith, kick the boy off, and that there was no one else on the platform at the time. Toney testifies that the man rushed and hallooed at him, and made him jump off, and that he did not see him kick the boy, but that he can’t swear that he did not, and thought he was near enough to have kicked him. Wood testifies that he was loading his express wagon and heard exclamations of the by-standers “the man with the white shirt on kicked the boy off.” Jackson also testifies that he went to the boy immediately, put him in a hack, and sent him to his mother, and that the boy said “that man kicked me off.”

The story which Smith tells is; that he has been, for the past ten years, in the employ of the Vicksburg, Shreveport & Texas R. R. and the defendant companies, but that, at the moment of the occurrence, he was unemployed. As we understand him, he had just previously been in the employ of the V., S. & P. Co., and re-entered that service immediately afterwards, so that the time during which he was not so employed was measured by that of the occurrence. He says that he got on the train at the bridge, as it was coming in, because he wanted to see the conductor and ask him how he had been getting on, and that he saw the boy catch on at that point; that, in backing out from the depot, he was standing on the rear platform of the white coach, riding around for *1710pleasure, while the boy was on the adjacent front platform of the sleeper, and that he neither spoke, nor did anything to him, but that the boy jumped off; that considering the speed of the train at the time anyone used to getting oil trains would not have fallen; and that he remained on the platform after the boy was caught in the wheel, made no attempt to pull him out, and did not know until afterwards that he was hurt. Being asked, “How soon did you leave the train after that accident?” he replied, “I think about two weeks”. At the end of which time it appears that he went to visit his father, in Mississippi, ¡and remained there, until he returned to Shreveport in order to give his testimony. lie further testifies that he had not been in 'the employ of the “Cotton Belt” since 1891, and has chased no boys off its trains, and would not have done so under any circumstances, though he also says that he was employed in the yard, and that all the men there, from car inspector down, have orders to keep trespassers and vagrant boys off the trains. He further says that he had seen the boy, in whose behalf the suit was brought, jumping on and off the trains every day.

There are two witnesses who undertake to testify positively that Smith did not kick the boy; Shanklin and Hutton. Shanklin was at that time in the employ of the V., S. & P. Co., and was going toward the depot, from which the train was coming, on another track, and on the side upon which the boy came off. lie says: “I was a car length below, and had a full view of the rear end of the car, when the boy fell”; and from his further testimony, he places himself somewhere near the end of the sleeper, and from two and a half to five feet from its side. He swears, most positively and emphatically, that there was no one but the boy on the rear platform of the white coach, that the boy was on the steps of that platform," and that he fell off, and was not kicked off. It is shown to our satisfaction that, within a fortnight after the occurrence, this witness stated that he was not in a position to see whether the boy was kicked off or not, and it is evident that there is an irreconcilable conflict between his testimony and that of Smith, who swears that he was standing on the platform, upon which the witness swears that there was no one standing. The other witness, Hutton, claims to have been standing about half way in the rear door of the white coach, with one foot on the platform, and near Smith, who was outside on the platform. He says that the boy was on the steps of the sleeping car platform and beyond Smith’s reach; and that Smith neither spoke to him, nor kicked *1711him. He also says that the boys are great nuisances, and worry the railroad company’s employes a great deal, and that he, now and then, tells them that they ought to be doing something else than catching on passenger trains. Two other witnesses, Woodward and Russell, testify that they did not see Smith kick the boy, though they saw the exit of the latter, and saw him hang- by the hands, drag, and fall. This testimony is unimportant, except in si far as it corroborates the boy’s story. Woodward was located in the colored coach; and Russell was standing on the lower steps of the front platform of the white coach, and neither could see Smith, who was on the rear platform of the white coach. Their statement that the boy appeared to jump, or step off, throws no light on the question at issue, because anyone so situated, and driven, by force, from the rear, would involuntarily make some effort. Woodward says that he could have seen anybody kick him. This is manifestly untrue. Russell, who was in a better position than Woodward, says he could have seen it, if the boy had been kicked “hard”. He, no doubt, means by that, that, if Smith, in kicking the boy, had brought his own person within range of his, Russel’s, view, i. e,., beyond the line of the car’s side, the witness could have seen it; but that is not to the point. Several other railroad employes were examined, and they agree that the practice of jumping on and off the trains, by colored boys, was a source of great annoyance, and that their instructions were to keep the boys off. One or two of them undertake to identify Craig as one of the offenders. It also appears that there is an ordinance of the city under which the offence can be dealt with. The Chief of Police testifies, that, in July, 1899, when the affair occurred, Smith was a special officer, appointed at the request of the railroad companies and paid by them, and that he was so appointed upon the representation that they needed such a person as watchman at the bridge; because of disturbances on trains; and because of the annoyance to which they were subjected by boys jumping on and off their trains.

Jones, train inspector for the V., S. & P. Co., testifies that Smith had been employed about the yards for several years, and was so employed in the summer of 1899, and that he had seen him chase boys off the trains. And Richler, Walker, and Eants, also testify to having seen Smith so engaged — Walker mentioning the name of a boy who was arrested by Smith in August, 1898, and fined $5.00. When we add to this testimony the eloquent silence of the defendant upon the subject of *1712Smith’s employment, further comment becomes unnecessary. If he was not employed by it, some respectable and responsible officer would have so testified, as its learned counsel fully appreciated the importance of the question.

We concur in the conclusion reached by the jury, before which the case was tried, and by the judge a quo, who made the verdict the judgment of the court, that the case isi with the plaintiff, and that it has been proven that the boy, in whose behalf the suit was brought, has lost his arm by reason of his having been forcibly, and unlawfully (as to the manner) ejected from a moving train by a person for whose action the defendant is liable.

Cooley on Torts, §§ 532, 538; Burrows on Negligence, 155; Steamboat Co. vs. Brockett, 121 U. S., 637; Hoffman vs. N. Y., Etc., R. R., 87 N. Y., 25; Higgins vs. Watervliet, Etc., R. Co., 46 N. Y., 23; Coleman vs. N. Y., Etc., Co., 106 Mass., 160; Johnson vs. Chicago, Etc., R. Co., 58 Ill., 348; Hart vs. N. O. & C. R. R. Co., 1 R. (La.), 178.

The amount of damages awarded was $4,000, and defendant’s counsel argues that, considering the position, earning capacity, etc., of the person injured, this is excessive.

The boy is poor, black, illegitimate, and ignorant, and, when injured, was receiving seventy-five cents a week for working about a negro barber shop, to which were added his earnings, probably a few dollars a week, as a bootblack. It seems to us that, being thus about as badly situated as a boy of fourteen, who is not an invalid or a criminal, can be, he was particularly in need of the arm of which he has been deprived; for that, and the other arm, were about all that he had to depend upon to help him through, in the long struggle which lies before him, and which is hard enough, even for those who are better situated and have both arms and hands; and that the amount as allowed is not excessive. Ketchum vs. T. & P. Railway Co., 38 Ann., 777; Barnes vs. Railway Co., 47 Ann., 1218; Lampkin vs. R. R. Co., 42 Ann., 997.

The judgment appealed from is therefore affirmed.

Rehearing refused.

Rehearing

On Application for Rehearing.

The counsel for the defendant, in their brief, filed in support of the application for rehearing, say:

“Craig says his feet were kicked from under him, yet search the *1713“ record in vain, and not another witness says as much. If he was false “ in these particulars, it was an easy matter for him to be false in all.”

With no particular effort, we have found the following testimony upon the subject mentioned, beginning with that of Craig, the plaintiff, to whom the counsel refer, to-wit:

Lewis Craig: “He said, ‘get off here’, and I turned around towards “ the depot, and then he kicked me; and when he kicked my feet from “ under me, I held hold of that little thing by the steps that you pull up “by; I held hold of that with my left hand, but the train jerked me and “ I had to turn loose, and it rolled over my arm. I was standing on the “ steps when he kicked me.”

Elmore Jackson: “Q. Did you see Tony Smith kick him? A. Yes, “ sir; I saw him kick him. Q. Did you see the boy fall off ? A. When “ he kicked him, he disappeared to my eyes; I was on the ground, and “ couldn’t see across. Q. What side was he on ? A. Next to the de- “ pot, and I was on the side next to the saloon. After he fell, I could “ not see him until the train passed, and then I saw him get up with “his arms folded like this (illustrating). Q. Did you recognize Mr. “Tony Smith? A. Yes. Q. How long have you known him? A. “ I was raised where he was; I lived there for a number of years after he “moved there. Q. There is no doubt about his actually being the “man who kicked Lewis Craig off? A. He was the man; I saw him.

^ vc1 75* vr ■K*

“ Q. Did Lewis make any statement at that time, as to how it happened? A. Yes, sir; he said ‘That man kicked me off.’ ”

Lewis Stephens:

“Q. Where was the boy at the time you saw him? A. He was “ standing on the coach steps, and that man, Tony Smith, kicked him “off the train. * * * Q. You saw this man kick the boy off the “train? A. Yes, sir; I saw him kick the boy off the train. Q. There “ is no doubt about it, you saw him kick him? A. Yes, sir; I saw him “kick him off the train. Q. You saw the boy fall? A. Yes, sir. Q. “ And when you next saw him, his arm was mashed ? A. Yes, sir.”

Cross-examined:

“Q. How did the boy fall; did the man kick him clear loose, or did the boy hang by the rail a little while ? A. When the man kicked him, “ he fell and hung a little while; he hung on to it a little while.”

Robert Wood:

*1714“Q. What is your employment? A. I work for the Express Oom“pany. * * * Q. Do you remember anything about the date on “which Lewis Craig is said to have been injured at the Union Depot? “A. I do not remember the date. Q. Do you remember the fact; “were you at the depot at the time? A. Yes. Q. What were you “ doing ? A. Loading the express wagon. Q. Did you see the oceur“rence? A, No, sir; I did not see it at the time it happened. Q. “ State whether or not, about that time, you heard any voices or cries or “ exclamations in regard to that accident ? A. I did. Q. What were “ they. A. I heard them say, the man with the white shirt on kicked “ the boy off. Q. Was that right at the time of the accident? A. It a was about two or three minutes before the boy got in front of the “wagon. Q. Did you see the boy ? A. Yes, sir. Q. What was his a condition ? A. George was leading him, and his other arm was hang- “ ing; I stopped work to look at him * * * Q. Did you see Tony “ Smith there that day ? A. Yes, sir. Q. How long have you known “him? A. Since before he was grown good; I knew his father well, “ he has been around the bridge here for five or six years.”

The learned counsel refer to this testimony and say that Jackson does not testify that Craig was kicked off the t^-ain, but that (having been kicked) he disappeared from the eyes of Jackson, who was upon the other side, and could not see across. It will be observed, however, that Jackson also testifies, that when the train passed, he saw Craig “get up, with his arm folded liked this” (probably demonstrating the manner in which the boy held his crushed arm). As to Stephens, the counsel say that his “evidence is so emphatic, and manifestly exaggerated, that, in every line, his bias is shown.” Nevertheless, he is another witness who “says as much” as Craig; and whether he is exaggerating, or is biased, is a good deal a matter of opinion. The counsel for the plaintiff seem to think 1hat he is not, and this court is also of that belief. Counsel for defendant state that Henry Toney, a witness for the plaintiff, “says postiively that the boy jumped off, and was not kicked or pushed off”. That was evidently the impression which Toney received from his point of observation, and he so testified when first on the stand, but, upon being recalled, he testified as follows: “Q. You stated in your direct examination that you saw a man on the platform, and saw the boy jump off, did you mean the jury- — —” (objected to by counsel for defendant). “Q. Can you swear that Toney Smith did not kick that b<-y off that *1715train? A. No, sir; I cannot. Q. You say that you did not see him kick him? A. No, sir; I did not see him kick him. Q. Can you swear positively that he did not kick 'him ? A. No, I cannot. Q. (by juror). Did not you swear that you saw him jump off? A. I said that the man made him jump off. Q. How far was the man from the boy when the boy jumped off? A. He was opposite the coach door. Q. On the inside of the coach or on the outside of the coach? A. It was outside of the coach. Q. Could he have kicked the boy ? A. Yes.”

The learned counsel, referring to the claim that Smith was acting for the defendant, as their employe or under circumstances which made the defendant liable for his conduct, say: “On the next proposition the evidence of plaintiff does not make even a prima facie showing”.

The following is the evidence, and all the evidence in the record, except that of Smith, upon the subject of that individual’s employment at or about the time of the accident.

G. IS. Richler.

“Q. Are you acquainted with Tony Smith ? A. Yes, sir. Q. Do you know whether or not he is employed by the Cotton Belt Road? A. I cannot say positively? Q. What do you mean? A. I cannot say positively, because I do not know whether he is employed by them or not. Q. Did you see him during the month of July, last summer, working for the Cotton Belt? A. I cannot say that positively. Q. What did you see him doing ? A. I saw him on the cars, the same as other parties, chasing the boys off the cars. Q. Can you say whether or not he was employed by the company? A. I do not know. Q. You saw him keeping boys off the train? A. I saw him running the boys. Q. In July last? A. Yes. * * * Q. Did he seem to be working pretty energetically at that — chasing the boys away ? A. Yes, sir. Q. At the time there were two trains a day? A. Yes, sir. Q. He seemed to be working vigorously at chasing the boys ? A. He had to be light-footed to catch them, and he caught very few. * * * Q. Did you ever see Tony Smith working on the Cotton Belt train immediately after the injury to Louis Craig? A. Yes, sir. Yes, sir; I saw him one, two, or three days after that. Cross-examination. Q. You saw this man Tony Smith, on the cars passing- back and forth, but you do not know whether he was on the pay roll of the company, or employed by the company? A. No, sir; I do not know whether he was or not. I saw him on the ears chasing the boys. Q. You have seen other men on the other train *1716keeping them off, too? A. I have seen Trout; he had them getting off the top sometimes, as well as off the platform.”

C. E. Jones.

“Q. Are you acquainted with Tony Smith? A. Yes, sir. Q. Have you ever seen him chase boys off the Cotton Belt train ? A. Yes, sir; I have seen him chase boys off the Cotton Belt train, and Jj have seen him chase them off of the V., S. & P. train, also. Q. Do you know whether he is employed by the Cotton Belt? A. No, sir; I do not. Q. Do you know whether he was employed by the Cotton Belt last summer ? A. I do not remember the date, but for quite a while he was employed there. He has been employed mostly in the yard. I do not know what train it was exactly, but it was some time during the present summer. He was employed in the yard mostly for three or four years. Q. What were the general orders to the men working in the yards in reference to these boys jumping on and off the trains? A. We have all got instructions to keep them off there, if possible. Q. What position do you hold? A. Train inspector of the V., S. & P. Railroad, Cross-examined. Q. Is it a matter of great annoyance and trouble to the V., S. & Pacific and the Cotton Belt people to keep these little boys off the train? A. Yes, sir.”

Ed. Wcdlcer.

“Q. Did you ever see Tony Smith apparently working on any Cotton Belt train this summer? A. I saw him going backward and forward on the train. Q. Did you see him chasing boys off the train ? A. On one night the V., S. & P. train came in about seven o’clock, and Willie Weekly jumped on, and I think it was Tony Smith that caught him. He chased him and grabbed him around the shoulders; it was at night, but I think it was Tony Smith.”

IF. A. Nelson (Chief of Police, of Shreveport).

“Q. During the month of July, last, was Tony Smith a police officer of the city of Shreveport? A. Yes; special watchman for the railroad company; watched the bridge down there and had authority to act as policeman. Q. Paid by the city? A. No, sir. Q. He is a special watchman in every sense of the word? A. Yes. Q. Do other special watchmen throughout town have authority of policemen? A. Yes. Q. He (Smith) is paid for working for private parties? A. Yes. The railroad has him employed, just the same as watchmen are employed by the banks. Cross-examined. Q. How did this special watchman come to be appointed? A. The railroad companies asked us to do it; they *1717wanted a watchman down by the bridge, and then, too, there are disturbances on the cars — frequently there are. Q. Was there some complaint about little negroes jumping on and off the trains ? A. Yes, sir; that is the reason we appointed him, and gave him the same authority as a policeman. Last fall Mr. Hearn asked me for a man, and he paid him for that special purpose.”

Now, it is true that Smith himself testifies that he was not in the employ of the Cotton Belt, though he had been, off and on, for years, but he also testifies that he did not chase boys off the train, and continues as follows:

“Q. You can positively swear that you have not chased them off the Cotton Belt train? A. Yes, sir; I have not. Q. And you would not have done it under any circumstances? A. No; I would not. Q. Do you mean to say that if your duty to the Cotton Belt railroad called for such action on your part you would not have done it? A. No, I would not.” Which testimony is entirely irreeonfcilable with that before quoted, which was given by witnesses apparently as worthy of belief and certainly more disinterested than Smith. “But,” say the learned counsel: “We did not stop there” (with Smith’s testimony) “we put the whole train crew on the stand, from the conductor down, and each and every one of them, swears specifically as to who composed the train crew on the day of the accident.” This is quite true, but there are two things to be said in regard to the( testimony thus referred to, to-wit: First, that nobody pretends that Smith was a member of the train crew and, second, that the conductor, in his testimony, not only does not include Smith ns a member of the train crew, but gives us to understand that he was not on the train, though that fact can hardly be denied, and Smith swears that he was there for no other purpose than to pay a friendly visit to the conductor. In order that there may be no misunderstanding about the conductor’s testimony, we quote it:

J. A. Holmes sworn on behalf of defendant:

“Q. What is your occupation? A. I am a conductor. * * * * Q. Do you remember the time that the boy, Louis Craig, had his arm injured by being run over near the depot, here ? A. Yes. Q. Were you in charge of that train? A. Yes. * * * Q. (by jury). Of whom did the train crew consist? A. Of the conductor, the engineer, fireman and porters. Q. Did anybody else have any business on that train ? A. The car tenders. Q. Was anybody else — anyone other than these, *1718allowed on the train? A. No, sir. Q. Anybody else that got on, besides the train crew and car tenders, would have to get off? A. Yes.” Smith, upon the other hand, testifies as follows: “Q. Are you in the habit of riding on that train? A. Yes, I have been. Q. The conductor knows you? A. Yes. Q. The train men know you? A. Yes. (By the Court): Q. Why did you take that train at the bridge and go back on the same towards the freight yard ? A. I had not seen Holmes for a long time, and I wanted to see him and ask him how he had been getting along. (Counsel continues). Q. You say you had not seen him for a long time? A. No, I have not seen him for a long time. Q. Do you mean to say that he had not been on the train for a long time? A. Not down here. Q. He was just recently on down here? A. Yes. Q. The other conductor you have seen frequently ? A. Yes.”

With the testimony which we have thus quoted in the record, it seemed rather significant that no officer or person connected with the defendant company should have taken the stand to say that Smith was not acting for it, or with its authority, in ejecting the plaintiff from its train. But let it be conceded, arguendo, that that circumstance is not to be taken as corroborating the testimony tending to show that Smith was employed by the defendant, the affirmative evidence on that subject still remains; and, were it not for the statement of fact which the counsel make in their brief for rehearing and the affidavits of other persons, which they have attached thereto, it would seem sufficient for the purpose, without corroboration. And, supposing that the evidence in the record is to be controlled by statements and ex parte affidavits, outside the record, presented after the case has been decided on appeal, and that it should be held that Smith was not, at the moment of the infliction of the injury upon the plaintiff, in the employ of the defendant, to the knowledge of the counsel, or of the officers who have furnished the affidavits mentioned, the fact still remains that he was, and had been, and continued to be, engaged in the business of ejecting boys from defendant’s trains, and it would be unreasonable where an individual is permitted to travel back and forth on the trains of a railway company, discharging certain functions, to all appearances as though he were employed for that purpose, to permit such company to escape the consequences of his acts, done in the course of such apparent employment. Cooley on Torts, 622, 623, 624; Lampkin vs. Railway Co., 42 Ann., 997; Althorf vs. Wolfe, 27 N. Y., 355.

*1719The manner in which the testimony was given led the court into a misapprehension as to the possible relations existing between the defendant company and the Vicksburg, Shreveport and Pacific Railroad Company; but it is a matter of no consequence, and has no bearing upon the result.

Rehearing refused.