The opinion of the court was delivered by

This cause is exactly similar to that of Eland Smith against the same defendant, ante p. 1325, and with which it was consolidated for the purpose of the trial in the District Court and on this appeal.

*1331Therefore, for the reasons therein assigned, the judgment appealed •from is affirmed.

ON Application foe a Rehearing.

The plaintiff in his application for a rehearing sought to differentiate this case from the Mire case, cited in our original opinion.

We are compelled to differ from counsel. We have not found the difference between the two cases for which they contend. As in the Mire case, we have not traced the cause of the accident to the billet of wood which was found on the trick. It may be that it was the uause, but we do not think after an examination of the testimony that it was.

We have not been favored with authorities on rehearing to sustain plaintiff’s contention. Our conclusion must be the same as that previously reached, save that we comply with the prayer of plaintiff’s petition and change our judgment and that of the District Oourt to one of non-suit.

It is therefore ordered and adjudged that our original decree is amended, also the decree appealed from. Instead of rejecting plaintiff’s demand, as heretofore, the demand of plaintiff is dismissed in both courts as in case of non-suit.

The costs of appeal to be paid by the appellee.