*555On petition por a rehearing.
Woods, J.The appellee presents two reasons for a rehearing, namely :
1. That the merits of the cause have been fairly tried;
2. That the opinion reversing the case is not founded on good law.
We have not changed our opinion of the law of the case, and we can not say that the merits have been fairly determined. Instead of the plaintiff' having failed to prove his complaint as counsel contends, it is evident from the testimony, and from the answers of the jury to interrogatories, that he did prove to the satisfaction of the jury some of the material averments of injury and damage as charged. It appears too, that the defendant made proof of the facts averred in the third answer, and the probability, if not necessary inference, seems to be, that the verdict for the defendant was based on that answer and the proof made in support thereof.
The petition is overruled, with costs.