on rehearing.
Opinion delivered October 8, 1906.
Wood, J.Appellant insists that the court erred in holding that there was any proof that the motorman was guilty of negligence after he discovered the plaintiff’s peril.
We have carefully considered the testimony bearing upon this question; and while it is not without difficulty, we do not see any reason to change the views expressed heretofore. We adhere to the conclusion that there was evidence sufficient here to uphold the verdict.
It is also contended that, inasmuch as this court has declared as matter of law that the appellee was guilty of contributory negligence, it was error for the lower court to submit that question to the jury. If appellant had asked the trial court to declare that appellee upon the undisputed evidence was guilty of contributory negligence, and the trial court had refused, and it had excepted to the ruling, or if it had rested on its objection to the court’s instructions in which the question of contributory negligence was submitted to the jury, it would then be in a position to complain. But it did not make such request, nor rest on its objection to instructions given. On the contrary, by asking the court to submit the question of the contributory negligence of appellee to the jury on the evidence as a matter of fact, it abandoned its objections to the court’s instructions submitting that question, acquiesced therein, and waived any objections it might have raised here to the ruling of the court in submitting that question. Appellant did not ask the trial court to confine the jury to the question of whether or not the appellant discovered appellee’s perilous position and, having discovered same, failed to exercise ordinary care to avoid injuring her. Not having requested that the issue be narrowed to this inquiry in the court below, appellant can not complain here because it was not done.
True, appellant asked for peremptory verdict, but, as we have determined that there was a question for the jury, the court did not err in refusing this request.
As there was no error in the court’s charge of which appellant can complain here, the only question for us has been whether, giving the evidence its strongest probative force in favor of the verdict, it was legally sufficient to uphold it.
Judge Battue concurs in the judgment, but thinks that there was sufficient evidence to warrant the submission to the jury of the question of contributory negligence.