ON PETITION FOR REHEARING. In support of her petition for a rehearing, appellee insists that under the "law of the case" as determined on the prior appeal, the judgment should have been affirmed. This 5. contention is based upon the theory that the first paragraph of the complaint alleged the facts concerning the establishment, location, and opening of the highway where she was injured, by the county commissioners, the annexation thereafter by appellant of certain territory, which did not include the place where appellee was injured, and that this court, on the former appeal, by implication, held the first paragraph of the complaint good and that the place where she was injured was within the corporate limits of the city. There is no merit in this contention. We were not, in the former appeal, called upon to determine the sufficiency of either paragraph of the complaint.
The second paragraph of the complaint specifically alleges that the highway upon which appellee was injured was within the corporate limits of the city, and that it was one of the streets in the city. It may be doubtful whether the first paragraph sufficiently alleges that the place where appellee was injured was within the city limits. No question regarding the sufficiency *Page 406 of either paragraph of the complaint was presented in the former appeal, nor in the present appeal.
The undisputed evidence in the instant appeal shows that the place where appellee was injured was outside of the city. The whole of the street at the point where appellee was injured, and for some distance both east and west of that point, not being within the city, appellant was not required to keep it in repair.
Rehearing denied.