
    Louisville & Nashville Railroad Company v. Williams’ Administrator.
    (Decided October 5, 1917.)
    Appeal from Hart Circuit Court.
    Appeal and Error — Common Law Action — Reversal of Judgment— Practice. — While it is the practice in common law actions where the Court of Appeals is of the opinion that the plaintiff failed to make out a case for the jury to reverse the judgment for a new trial consistent with the opinion, yet this rule is for the benefit of the plaintiff and where plaintiff concedes that the evidence on another trial will be the same and asks that the opinion be modified and the judgment reversed with directions to dismiss the petition, his petition for a modification of the opinion in this respect will be granted.
    WATKINS & CARDEN, SIMS & RODES and BENJAMIN D. WARFIELD for appellant.
    H. L. JAMES and C. B. LARIMORE for appellee.
   Opinion of the Court by

William Rogers Clay,

Commissioner — Granting petition for modification of opinion.

In onr former opinion, we held that appellee, who was plaintiff below, failed to make ont a case for the jury, and reversed the judgment for a new trial consistent with the opinion. Appellee now asks that the opinion be modified and the judgment reversed with directions to dismiss the petition. The petition for modification of the opinion is based on the following facts: Plaintiff desires a review of the decision of this court by the United States Supreme Court. To that end a final judgment is necessary. He concedes that on another trial, the evidence will be the same, and that the trial court, following the opinion of this court, will direct a judgment in favor of the appellant. In order to save the unnecessary trouble and expense of another trial, he is now willing for this court to direct that the petition be dismissed.

While it is our practice in common law suits where this court is of the opinion that the plaintiff failed to. make out a case, to reverse the judgment for another trial consistent with the opinion, this rule is solely for the benefit of the plaintiff, who may be able on another trial to supply the evidence necessary to make out his case. Where, however, as in this instance, the plaintiff concedes that on another trial he will be finable to make out a case under the opinion of this court and petitions the court to modify its opinion and direct that plaintiff’s petition be dismissed, we conclude that the petition for a modification of the opinion should be granted.

Wherefore, that part of the former opinion reversing the- judgment for a new trial consistent with the opinion, is withdrawn, and the judgment is reversed with directions to dismiss the petition.  