Louisville & Nashville R. R. v. Irby

Modification of opinion by

Judge Nunn.

Appellant filed a petition for a modification of the opinion in this ease and insists that the court misconstrued the testimony as to whose duty it was to give the signal for the separation of the cars at the time Irby was injured. Conceding this to be true, which we do not decide, the case is not to be tried upon the testimony of the last trial, but is to be governed by the testimony on the future trial, and if there should be a conflict on this point, then the court should also submit that issue to the jury.

The opinion is modified to this extent, and the petition for modification is overruled as to other matters.'