ON APPLICATION FOR REHEARING
Decided July 11, 1938
By THE COURTThe application of defendant for rehearing challenges in two particulars the correctness of our decision.
It is urged first that the court committed no error in refusing to submit to the *396jury the specification of negligence based upon violation of §7248-2 GC. We adhere to our former opinion.
We are not testing the refusal to submit the specification of negligence grounded upon the failure of defendant to secure a permit from the county surveyor, but upon the averment of the violation of the section. Though It be granted that the violation of the statute is negligence per se, there was left the question whether its violation, under all the facts, was negligence. Nor can we find that that which the court said to the jury in the general charge was tantamount to a submission of any- issue respecting the violation of §7248-2 GC.
We are, however, concerned with the second question urged, namely, the effect of the affirmative answer of the jury to the special interrogatory submitted to them by the court upon request of the plaintiff, which was answered in the affirmative. It is as follows:
“Could the plaintiff in the exercise of ordinary care for his own safety have seen the truck of the defendant in time in the exercise of ordinary care to bring his automobile to a stop .and thus have avoided the accident?”
If the answer to this interrogatory in and of itself establishes contributory negligence on the part of the plaintiff, it is determinative of the judgment and supports the verdict.
We find that the effect of this interrogatory was not considered in our opinion.
We shall grant a rehearing on this one question and give counsel for plaintiff five days after the receipt of this opinion within which to file brief. Counsel for defendant need file no reply brief.
BARNES, PJ, HORNBECK and GEIGER, JJ, concur.