On Motion for Rehearing. Counsel for appellant have filed a vigorous motion for rehearing in this case, and earnestly insist that we erred in affirming the judgment of the lower court. The motion was argued orally for both sides, and has had our careful consideration. We have again concluded, however, that we were correct in affirming the judgment for the reason stated in the original opinion, which was that no negligence was shown on the part of appellee.
Counsel for the motion contend that we have held in this case that the defense of assumed risk, as that defense was available at common law, is still available as an affirmative defense to a nonsubscriber, notwithstanding the provision of our Workmen's Compensation Act taking away from a nonsubscriber the defense of assumed risk in express terms. As the writer of these remarks construes the opinion in this case written by Mr. Justice O'QUINN, we have not held that the defense of assumed risk is now available to a non-subscriber as an affirmative defense. But, if the opinion is susceptible of that construction, I want it distinctly understood that I do not agree with it on that point. My views on the point are expressed in West Lumber Co. v. Morris Barnes (Tex.Civ.App.) 257 S.W. 592, and in West Lumber Co. v. Smith (Tex.Civ.App.) 283 S.W. 1104, in which Mr. Justice O'Quinn wrote the opinion. I am not unmindful of the opinion of the Commission of Appeals in the latter case to the contrary, which was not approved by our Supreme Court, but only the disposition of the appeal adopted.
The motion for rehearing is overruled.
O'QUINN, J. I am in accord with the above remarks of Chief Justice HIGHTOWER.