delivered the opinion of the Court.
This case was tried by the circuit judge without the intervention of a jury, and judgment rendered in favor of the defendant in error. The plaintiff in error
The motion must prevail. Road Commissioners v. Railroad, 123 Tenn., 257, 130 S. W., 768. In opposition to the motion the plaintiff in error refers to Lancaster v. Fisher, 94 Tenn., 222, 28 S. W., 1094, Barr v. Railroad, 105 Tenn., 544, 58 S. W., 849, and State v. Sneed, 105 Tenn., 712, 58 S. W., 1070, prior cases. In the case cited from 123 Tennessee, the court had in mind the three cases just referred to, and clearly intimated its dissatisfaction with the rule so stated and necessarily overruled these cases, but did not deem it necessary to mention them by name. To prevent future misconception, we now overrule these eases on the point in question, and reaffirm the rule laid down in Road Commissioners v. Railroad, supra. The principle of this case was followed in Seymour v. Railroad, 117 Tenn., 98, 102, 98 S. W., 174, and in Barnes v. Noel, 131 Tenn., 126, 131, 174 S. W., 276, and Bostick v. Thomas, 137 Tenn., 99, 101, 191, S. W., 968. Since Road Commissioners v. Railroad was decided we have uniformly followed the rule there laid down.