*173On Petition foe Rehearing.
Montgomery, J.In the original opinion appellant’s bill of exceptions containing the evidence, and motion for a new trial, were treated as properly in the record, without any discussion of the questions relating thereto made by appellee’s counsel. On petition for a rehearing it is alleged that the court erred in holding such bill of exceptions and motion for a new trial to be in the record, and in holding that, upon the evidence as a matter of law, appellee was guilty of contributory negligence.
9. Appellee assigned as cross-error that the circuit court erred in its order of November 6, 1905, amending and cor-, reeting, nunc pro tunc, its order of July 25, 1905, so as to show that appellant was given ninety days in which to prepare and present its general bill of exceptions. The memoranda of the trial judge, upon which the amendment nunc pro tunc was made, were as follows:
“Mo. filed for N. T. Mo. for N. T. ov and ex. Pray ap to Sup. Ct. and granted. Bond sum $15,000.00 by Sept. 11, ’05, Aetna Indemnity Co. as surety. 90 days for bill of ex. Pltffi. obj. to surety, ov. and ex.”
These notes were clearly sxifficient to justify the court in making the requested correction, showing, in accordance with the fact, that appellant was given ninety.days in which to prepare a bill of exceptions upon the overruling of its motion for a new trial.
On October 3,1905, appellant filed a precipe with the clerk of the circuit court, calling for a complete transcript of the record in the. cause, except that the original bill of exceptions containing the. evidence be certified instead of a copy thereof. On November 8, 1905, a further precipe was filed requesting a transcript of the proceedings relating to the nunc pro tunc entry. The argument of appellee’s counsel is, that time beyond the term for filing the bill of exceptions being given only by the nunc pro tunc order of court, *174and that action not being sustained by sufficient evidence, therefore the bill of exceptions is not properly a part of the record. We have already seen that the nunc pro tunc entry was fully justified by the notes of the judge introduced in evidence, and this ruling disposes of the objection under immediate consideration.
10. It is insisted that the motion for a new trial was not a part of the record on October 3, 1905, and could not be transcribed in obedience to the precipe of that date; that it was not called for by the subsequent precipe, and is accordingly no part of the record. The motion for a new trial was a part of the record without a bill of exceptions, and should have been transcribed as requested by the precipe of October 3. But if it were conceded that it was only brought into the record by the nunc pro tunc entry, it would still relate back to July 25, 1905, and become a part of the record as of that date, and be covered by the precipe for a complete transcript.
11. It is further contended that the record is not sufficient to present any question, because the original precipes have not been appended to the transcript, but only copied therein. Section 690 Burns 1908, §649 R. S. 1881, requires the precipe to be appended to the transcript. Section 667 Burns 1908, Acts 1903, p. 338, §7, declares that the written precipe shall constitute a part of the record and. be copied in the transcript immediately before the certificate of the clerk. This transcript was prepared in compliance with the latter act, and is clearly sufficient, and we are not required to decide whether the former statute upon this point is in force or repealed.
We have again considered the merits of the case upon the evidence, and adhere to the holding that it appears as a matter of law that appellee failed to exercise that ordinary care for his safety which the law exacts of a mature person in the circumstances shown.
The petition for a rehearing is accordingly overruled.