Herlong v. Arkmo Lumber Co.

On Application for Rehearing.

PER CURIAM.

In application for rehearing, among other contentions, counsel for plaintiff vigorously complain of the fact that in its judgment this Court went beyond the holding of the *425Judge of the District Court and found as a fact that the driver of defendant’s truck was free from any negligence.

Counsel iis in error in this conclusion. In our opinion we specifically stated that we pretermitted any consideration of the question of negligence on the part of the driver of defendant’s truck, preferring to base our judgment upon the existence of contributory negligence on the part of plaintiff. It is true that in this phase of the opinion we stated that we were “far from convinced” of the negligence of the truck driver. This verbiage was not intended to indicate in any degree or by any construction that we found as a fact either that the truck driver was guilty of negligence or was free from negligence.

The application for rehearing is denied.