On Motion for Rehearing. .
Bell, Judge.Plaintiff urges in his motion that the opinion of this court in the prior appearance here, established the law of the case to be that' there was only one essential element in the petition needed to state a cause of action. The movant further argues that the presumption is- that all questions as to the sufficiency of the petition when.tested by general demurrer were decided in the prior decisión regardless of .whether such questions were expressly treated in the opinion, and cites in support of these contentions Metropolitan Life Ins. Co. v. Saul, 189 Ga. 1 (5 SE2d 214); New York Life Ins. Co. v. Ittner, 62 Ga. App. 31, 36 (8 SE2d 582) McBurney v. Woodward, 86 Ga. App. 629 (72 SE2d 89).
We disagree.
In Division 1 of the previous opinion we stated that: “The petition shows that all- work on the hangar had not been completed and does not show that the plaintiff did not know of the unfinished floor.” (Emphasis supplied). By this- language the court recognized the presence in the case'of'the question as to whether the'plaintiff’s injuries were proxiniately caused 'by his own hegligence.; This question was left unanswered and undecided,' and’we are not precluded from' deciding it now. ' The presumption enunciated in the Ittner case and others' cited by the plaintiff is thus clearly rebuttéd here by the court’s own language used in the prior case.
Motion for rehearing is denied.