Upon a Petition to Rehear.
February 26, 1925.
By the Court:The application for rehearing is rested upon two grounds.
1. That the error of the trial court in allowing the plaintiff’s case to go to the jury upon the doctrine of *650last clear chance was invited by the defendant, because the defendant likewise asked for an instruction upon this theory of the case. While the doctrine of invited, error is well recognized in Virginia, we do not think it applies where the defendant is compelled to ask for an amendment to an instruction to be given for the plaintiff, or asks for a counter instruction contending that it more correctly states the law. The lower court was not led into error by the defendant. Director-General v. Pence, 135 Va. 351-2, 116 S. E. 351; Whitten v. McClelland, 137 Va. 741-2, 120 S. E. 146.
2. That in remanding the case the court should direct that the amount of damages be not again sub.mitted to the jury on the further trial of the case, but the issue be confined to a finding upon the question of liability of the defendant. Under section 6365 of the Code of Virginia the court is given jurisdiction to so provide in its order. This jurisdiction has been exercised in Whitten v. McClelland, 137 Va. 726, 120 S. E. 146 and other eases by directing that the question of damages should not be tried again. Upon considera-, tion of the entire record here and all the circumstances disclosed by it, we thought and still think that the ends-of justice do not require that the court should do otherwise than remand the case generally for a trial de novo.
Therefore the petition for a rehearing is denied.