In this case a petition for rehearing was granted and oral argument had. The original opinion and judgment filed herein on February 24, 1936, have also been carefully reconsidered.
It appears that there has been some confusion concerning the possible application of the law of contributory negligence to the factual conditions of this case.
The law of contributory negligence has no application whatever. The plaintiff in error, defendant in the lower court, was driving an automobile along the highway. A person by the name of Greene was driving along the same highway in another automobile, going in the opposite direction.
The testimony is conflicting as to the degree of negligence attributable to Graives and to Greene. The automobiles driven by these two parties came in contact with one another and after the automobile driven by Graives had come into contact with the one driven by Greene it then came into violent contact with another automobile which *Page 198 was occupied by B.T. Rawlins and Annie Rawlins, which contact resulted in the death of B.T. Rawlins and Annie Rawlins.
There is no evidence, and no contention, that any person having to do with the operation of, or occupying the automobile in which the Rawlins were riding was guilty of any negligence whatever. Neither is there any contention, or any evidence, that either of the persons killed was in, or had anything to do with the operation of the automobile driven by Graives, or with the automobile driven by Greene.
It may be that Greene was as guilty of negligent operation of an automobile on the highway as was Graives and that he was equally guilty with Graives of the commission of an unlawful homicide, but, whether he was guilty or not would not affect the status as to guilt or innocence of Graives unless it had been shown that Graives was not guilty of negligence and, therefore, not in any degree responsible for the deaths resulting.
Having made this explanation, it seems to me that no good purpose can be served by discussing the case further.
I think the opinion and judgment filed here on February 24, 1936, should be and is now adhered to.
WHITFIELD, J., concurs.