RESPONSE TO APPLICATION FOR REHEARING.
PER CURIAM.On consideration of the application for a rehearing, the majority of the court are of the opinion that on the authority of Cunningham’s Case, 158 Ala. 369, 48 South. 109, charge 7 as set out in the opinion above was properly refused, because it assumes the negligence of plaintiff. Consequently the application is granted. The former judgment of this court, re*239versing and remanding the cause, is set aside and annulled, and the judgment of the lower court is affirmed.
Anderson, C. J., and McClellan, Somerville, Gardner, and Thomas, JJ., concur. Mayfield, J., dissents. Sayre, J., not sitting.