ON MOTION FOR REHEARING.
Per Curiam.One of the chief arguments urged in support of the petition for a rehearing is that the question of *194plaintiff’s contributory negligence was not involved in tbe case, and that this court erred in discussing that question in its opinion. We find in the bill of exceptions that the motion for nonsuit made by defendant and sustained by the court was based upon the following grounds, namely: “ That the plaintiff has failed to show that the defendant was negligent upon the occasion in question, and for the further reason that the plaintiff has failed to establish the negligence charged in his complaint against the defendant, or any negligence on the occasion in question; and for the further reason that the negligence of the plaintiff himself as shown by his testimony in his endeavor to make out a case, directly contributed to the injury complained of.”
The opinion of the trial court does not appear in the record, and we are not therefore advised upon what ground it based its action in sustaining the motion. Presumably the court considered all of the grounds assigned in the motion, and for aught we know, may have based its action entirely upon the ground of contributory negligence by the plaintiff. It was therefore not only proper, but fair and right to the trial court that this court should consider the evidence in the light of these reasons assigned for the nonsuit, in determining the question as to whether the nonsuit was proper; and we do not consider that we were necessarily relieved from this obligation because defendant in its brief in this court failed to discuss the question of contributory negligence. It may have been the determinative question which induced the trial court to grant the nonsuit. It might have found as to all of the other questions raised that there was evidence tending to show negligence on the part of defendant, but because plaintiff himself had been guilty of negligence which contributed directly to the injury, his recovery was barred. We fail to see, therefore, wherein this court has gone outside of the record by discussing this question.
The motion for nonsuit was based upon the showing made hy plaintiff alone, and defendant presented no evidence whatever. ' We held in the opinion that upon the evidence as pre*195sented, there did not appear such a failure of proof to sustain the charge of defendant’s negligence, nor such proof of plaintiff’s contributory negligence, as to sustain or justify a non-suit. We see nothing in the brief of defendant on its motion for rehearing sufficient to change our views in any manner. The motion for rehearing is denied.