Safety Cab Operating Co. v. Thacker

ON APPLICATION FOB REHEARING

Decided Aug 1, 1934

By THE COURT

Submitted upon application for rehearing consisting of two branches.

We undertook to discuss both of these claims in our former opinion. The action of defendant in error riding on his motorcycle without his hands on the handlebars was a very strong indication of negligence on the part of the defendant, but it had three aspects:

1. Was it established?

2. Did it constitute negligence under the peculiar facts in the case? And,

3. If so, was it the proximate cause of the collision and incident injuries and damage?

The determination of the proximate cause of the collision as well as the other controverted questions were issues of fact peculiarly for the determination of the jury. Though we may have reached different conclusions had we been the triers of the facts we are unable to say that the members of the jury so far exceeded their rights as to require us to grant a new trial.

Respecting the charge, we undertook' to discuss it as we saw it in our former opinion.

The application for rehearing may be overruled. Counsel for plaintiff in error *308may note exceptions in the entry, and the entry may be prepared accordingly.

HORNBECK, PJ, SHERICK and MONTGOMERY, JJ, concur.