ON APPLICATION FOR REHEARING
Decided May I, 1936
By THE COURT
Submitted on application for rehearing. Counsel urge seven grounds in support of this application. We shall direct our attention to each of them as they are set forth in the supplemental application.
1. The verdict was excessive and appears to have been influenced by passion and prejudice.
The court is • of the unanimous opinion that the verdict is not excessive. Plaintiff was a minor. His injuries have crippled and maimed him for life. His expectancy of life has been shortened. Damages to which he may be rightfully entitled, if the defendant was negligent, should not be reduced solely because two members of the court are of opinion that defendant was not negligent. The injuries are present and the defendant should respond in damages if his negligence was the direct and proximate cause of the injuries.
2. The evidence clearly established that even under the assumption that the defendant was to the left of the center of the road his negligence, if any, in that respect was not the proximate cause of the accident.
Whether or not negligence was the direct and proximate cause of an injury is a question to be determined by the jury — in this case the court. The entire court is of the opinion that, assuming the defendant to have been negligent, by driving on the left side of the highway, the trial court could conclude and determine from the evidence that such negligence was the direct and proximate cause of plaintiff’s injuries and damages. Under this specification, defendant argues that Norman Clark, driver of the car in which plaintiff was a passenger, had the last clear chance to avoid the accident. The whole court is of opinion that the last clear chance doctrine is not applicable in this case.
3. Since the jury did not pass upon the facts, the constitutional provision should not be permitted to defeat the conclusion arrived at by tw,o of the three judges of the Court of Appeals.
*534Tire constitutional provision prevails when a jury case is submitted either to the jury or to the court with the jury waived. There are no exceptions. While there may be sound logic in this contention, the court cannot correct the provision nor avoid the results which may be reached in a case submitted as was this.
4. The dissenting opinion of Judge Horn-beck cannot be supported.
The author of that opinion supports the same and adheres to his original dissent. While the remaining two members of the court do not so agree, that fact alone is of no aid, as a unanimous decision is necessary to reverse on the weight of the evidence.
5. The court below was in error in finding that defendant drove to the left of the center of the road and in so doing was guilty of negligence per se.
The trial court was within its province in finding that defendant drove td the left of the center of the road, although the majority of the court is of opinion that such a finding was against the weight of the evidence. The court need not have found that in so doing defendant was guilty of negligence per se. The court was required to determine whether or not such operation of the defendant’s car constituted negligence and whether or not such negligence was the direct and proximate cause of the plaintiff’s injuries. The verdict returned and the judgment rendered is proof that the trial court found present the latter two elements. This claim falls within our comments made under Specification 2, supra.
6. The court failed to make special findings as requested by the defendant.
This claim was not argued in the briefs or orally. Under §12248 GC this court may disregard errors not argued. However, as stated in the original majority opinion of the court, all errors not argued were considered and no prejudice to defendant was found. The record discloses and we find that the trial court made special findings of fact as requested by defendant. No error could intervene to the prejudice of the defendant when, as a matter of fact, the trial court complied with his request in this particular.
7. There was a fatal variance between the plaintiff’s pleadings and his proof.
The entire court is of opinion that the defendant was fairly apprised of the claims of plaintiff by the petition as filed and that there was no variance between the pleadings and proof.
The respective members of the court adhere to their former opinion. The application for rehearing is, therefore, denied. Exceptions.
BARNES, PJ, HORNBECK and BODEY, JJ, concur.