In the first discussion, in the original opinion, dealing with contributory negligence, the elimination of which was sought by appellant's refused charges 7 and 8, we should have more accurately stated that contributory negligence was not involved, after the complaint was amended so as to contain only count 8, and when the case was finally submitted to the jury, as the amendment of the complaint automatically struck out all pleas to the counts that were stricken. We still think, even if there was, as a part of the res gestæ, evidence tending to show contributory negligence, that, while the charges could have been well given, it was not reversible error to refuse them. But, upon a reconsideration of the cause, we find that there was evidence showing contributory negligence independent of the res gestæ and made the basis of one or some of the special pleas; that is, the defective condition of the intestate's car. This evidence seems never to have been excluded, and could not have been successfully objected to when received under the pleading as it existed before the last amendment. While the court and lawyers doubtless knew that the last amendment eliminated contributory negligence, the lay mind of the jury may have thought that this issue was still before them, and the failure of the trial court to instruct the jury in the oral charge that this defense was not to be considered entitled the plaintiff to charges 7 and 8, and the refusal of which was probably prejudicial to the plaintiff.
We adhere to the rest of the opinion, but, as above pointed out, the trial court erred in refusing charges 7 and 8, and the rehearing is granted, the judgment of affirmance set aside, and the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
SAYRE, GARDNER, and BOULDIN, JJ., concur.