ON MOTION FOR REHEARING.
Jenkins, P. J.
The defendant in error in his motion for rehearing stresses the contention that the petition merely sets forth that the deceased died on a named date, and does not show that he met his death by being run over by the train. Apparently the chief argument and contention in the motion is that the deceased “ could have been and possibly was killed and put upon the track.” In the original brief of counsel representing the plaintiff in the court below, the burden of the argument seems to have been based upon the other and different theory. The following excerpts are taken from their original brief: “The physical facts exclude the idea of any deliberation on his part which could have resulted in such plan as would have been necessary for him to take his life as it was taken. On the other hand, the fact of the finding of the empty whisky *546bottle at the place, which was half full when last seen by [his roommate], the fact that recently prior thereto he was in the habit of getting drunk and becoming wholly unconscious and completely helpless when drunk, are circumstances which can lead to no other fair conclusion than that he sat down on the end of the cross-tie, drank his whisky, became unconsciously drunk, and was run over by the train and killed. The further fact that a large hole was cut in his topcoat and his other coat by something on the engine, which could not have been anything but the pilot sill or the step sill at the end of the tender, is proof that he had to be sitting up and was knocked over by one or the other and threw his head, which was cut off, and his right hand, which was cut off, under the wheels. Had he been lying on his face, as his body indicated when found, there is nothing on the engine which could have struck him in the back as he was hit.” It is true that in the succeeding paragraph of the brief, counsel made slight and casual reference to the present contention, in the following statement: “Not only the circumstances as above stated explode all theories of suicide, but the facts in connection with his death show that it could have been possible that he was killed and put on the track. It could have been possible that he drank so much whisky that it killed him before the train hit him. The physical facts further strongly indicate that after drinking the whisky he was afraid to walk across the trestle, sat down, and fell asleep with the view of sobering up, and the train hit him before he awakened, hence the physical facts are sufficiently strong tc authorize the jury, on many theories, to conclude that he could have come to his death in several different ways without suicidal intention, and that his death was not the result of suicide at the time and place.”
The original syllabus has been very slightly augmented in the effort to make plainer the meaning of the ruling as originally stated. The theory of the plaintiff which was specifically dealt with by the syllabus was that which we understood to have been put forward as his main and controlling contention. As we see it, there is nothing in the evidence to remotely suggest the surmise that the deceased had been murdered and his body thereafter placed upon the railroad-track. On the contrary, a small amount of change was found in his pockets, and the evidence, so far as it goes, indicates that there was no previous wound upon his person.
*547All the evidence, including especially the written expressions of the intent to commit suicide, and the position of the body with the neck across the rail and the fingers grasping the rail, seems to establish beyond reasonable doubt or question the fact of suicide. The strength of the defendant’s case lies not so much in attempting to specifically exclude any and all possible contrary surmises, as it does in definitely establishing beyond reasonable doubt or question the fact of suicide itself, with the result that any and all other theories, including that which is now urged by the movant, become necessarily excluded.
It is not an easy thing for us to feel impelled, as we have felt, to adjudicate the fact of suicide. What glimpses we obtain of this unfortunate youth indicate that he was of high purpose, right-minded, but acting under extreme stress and nervous tension.
Rehearing denied.