Galveston Elec. Co. v. Dickey , 138 S.W. 1093 ( 1911 )

On Motion for Rehearing. One of the grounds upon which the motion for rehearing, filed in this cause by appellant, is based, is that we erred in holding that the conclusion "announced in the case of Galveston Electric Company v. A. T. Dickey, 126 S.W. 332, with reference to the charge of the court, is erroneous." The expressions in the main opinion in this case which question the soundness of the conclusions reached in the case cited only reflect the views of the writer of the opinion, Justice REESE. The majority of the court have no doubt of the soundness of the decision in the case cited. The entire court is in accord in the conclusion that the charge in the instant case, considered as a whole, fairly presents the issues raised by the pleadings and evidence. In the case cited the error in the charge was emphasized by the special charge given by the court, while in the present case that error is rendered harmless by the special charge, set out in the main opinion, which, in view of the fact that the evidence only tends to show negligence in the particulars stated in the petition or in those stated in the special charge, in effect instructs the jury that they could only find for the plaintiff upon the specific act of negligence alleged in the petition.

The opinion of this court on the former appeal of this case (120 S.W. 1135) is in conflict with the later opinion in the case of Galveston Electric Company v. A. T. Dickey, supra. The court in the later opinion was evidently unmindful of the conclusion reached on the former appeal of this case on the question of whether the charge complained of was erroneous. This was probably due to the fact that the point was not decisive of the former appeal; the judgment of the court below on that appeal having been reversed because of the improper remarks of counsel for the plaintiff. But, be this as it may, the majority of the court adhere to the views expressed in the opinion in the case of Galveston Electric Company v. A. T. Dickey, supra.

The motion for rehearing is, we think, without merit, and should be refused.

Refused.