This case presents the same question as that decided in the case of The Pittsburgh, etc., R. W. Co. v. Bolner, 57 Ind. 572; and, for the reasons given in that case, the judgment below must be reversed.

The judgment below is reversed, with costs, and the causé remanded for further proceedings.

Opinion on petition por a rehearing,

A petition for a rehearing in this case has been filed, in which it is said, “The decision.is made upon the authority of the decision rendered in the case of the same appellant against Bolner, at the last term. But, upon a careful examination of the record in the two cases, it will be found that there is a wide and material variance between them, which, *599with all respect for the court, we venture to suggest, must have been overlooked in the .very great pressure of business.”

The petition then proceeds to point out the supposed difference between the two cases.

In the Bolner case, there was a petition for a rehearing filed by the same counsel; and, for the purpose of showing that the counsel then regarded both cases as standing precisely ujton the same ground, we make an extract from the petition for rehearing in that case. The counsel say: “ We also take leave to suggest, that two other cases, brought here by the appellant from the same court, have been submitted to this court for decision, in which precisely the same question is presented, in the same manner, as in this case, Nos. 5,685-6.” The number of this case is 5,686, and it is one of those thus referred to.

Upon again comparing the record in this case with that in the Bolner case, we are of opinion, with the counsel at the time of filing the petition for a rehearing in the Bolner case, that they are substantially alike.

The petition for a rehearing is overruled.