ON REHEARING.
THOMAS, J.— (4) The majority of the court are of the opinion that reversible error was committed in the giving by the trial court of the defendant’s written charge 26; that the charge was contrary to the rule declared in the cases of Davis v. Kornman; Prattville Cotton Mills Co. v. McKinney, and Caldwell-Watson Co. v. Watson, supra. See, also, discussion of the question in Wiita v. Interstate Iron Co., 103 Minn. 303, 115 N. W. 169, 16 L. R. A. (N. S.) 134.
The application for a rehearing.is granted. The judgment of affirmance heretofore rendered in this court is set aside and vacated, and the judgment of the city court of Birmingham is reversed, and the cause remanded.
Reversed and remanded.
Anderson, C. J., and McClellan, Somerville, Gardner, and Thomas, JJ., concur. Mayfield and Sayre, JJ., dissent.