OPINION ON MOTION FOR REHEARING.
BROADDUS, J.The motion is based upon two grounds, the second of which has no merit whatever. We will therefore confine our attention to the first, which is as follows: “Because the opinion in this cause, in holding that the appellant after having requested the trial court to state its findings of fact and conclusions of law separately as provided by section 695, Revised Statutes 1899, was nevertheless required to ask an instruction on common law negligence for failure to exercise ordinary care to discover the stock on the track in time to avoid its injury, and for that reason is precluded from raising such question on appeal, is in conflict with the following decisions of this court and also of the Supreme Court, which same this court must have inadadvertently overlooked. Then follows a list of numerous cases cited.
*657Under the statute in question it is made the duty of the trial court upon request of a party to a suit to “state in writing the conclusions of facts found separately •from the conclusions of law.” It is therefore insisted that for a failure of the court to find all the facts and conclusions of law thereon is error. We do not think the statute should he so construed for the effect would he to inculcate trickery hy permitting a party remaining silent, when he should speak, to take advantage of an oversight or omission of the court to find some particular fact and conclusion of law thereon. As said in the original opinion herein, it became the duty of the appellant to have asked the court to find the fact and give its conclusion of law thereon. And because the court was asked to find the facts and conclusions of law did not relieve him of the duty of rectifying any omission made by the court. And where the judgment is supported, as in this case, by the facts and law as declared by the court, it ought not to be disturbed for the cause assigned. And it ought not to be disturbed for the further reason, that the matter was not called to the attention of the trial court in plaintiff’s motion for a rehearing so that the omission could have been remedied. Motion overruled.
All concur.