On Petition to Behear
Counsel for Alvin J. Smith and H. 0. Kindrick have filed herein a very courteous, dignified and forceful petition to rehear on behalf of their clients. After fully considering the matter and the record again, we now have this petition for disposition.
This petition in no wise complains of our action in reversing the decree and judgment of the Court of Appeals in the cause of Turpin v. Smith and Kindrick. In *162this petition it is stated that they think this Court was correct in its opinion in so doing. The complaint here made is that these parties, Smith and Kindrick, did not have their day in court because the question was not submitted to the jury as to them as to whether or not Smith, who was driving Kendrick’s truck, was guilty of remote contributory negligence, and that thus these parties were denied their constitutional right of trial by jury in violation of Article I, sec. 6, of the Tennessee Constitution. This complaint is fully answered in our original opinion to our satisfaction, beginning on page 14 of the opinion, or the third paragraph from the end of the opinion. We do not deem it necessary to amplify what we there said.
The entire argument of this petition to rehear is pitched on the fact that the trial court did not submit a third issue of fact to the jury at the conclusion of the trial in addition to the two issues which were submitted and are copied verbatim in our original opinion to the effect that:
“3. We find for the defendants upon the ground that any negligence of Alvin J. Smith was remote or indirect, which was not a proximate cause or did not proximately contribute to the causation of the accident and the death of Eugene Turpin.”
It is argued that since such a request was not submitted to the jury and there is nothing in the general charge of the court in reference to the remote contributory negligence of Smith and Kindrick that thus this issue of fact has not been passed on by the jury and consequently Smith and Kindrick have been denied their day in court.
*163The trial court in the general charge gave a very correct charge as to what constituted remote contributory negligence generally. He later gave a charge in reference to remote contributory negligence of the driver, Turpin. Thus it was that the jury had before them what constituted remote contributory negligence; the trial judge in the general charge also very clearly and succinctly defined to the jury what constituted direct and concurrent contributory negligence on the part of the two drivers. The jury found that both Eugene Turpin, the driver of one truck, and Alvin J. Smith, the driver of the other truck, were guilty of negligence which directly and proximately caused or contributed to the causation of the accident. This being true there was no necessity for the jury to find whether or not Smith, as the driver of one truck, was remotely guilty of contributory negligence, because the finding of fact that the two drivers were guilty of negligence which directly and proximately caused these accidents negatived the very issue which the petition to rehear now says should have been submitted to the jury. This is very lucidly explained to the jury and to counsel as quoted on page 7 of our original opinion by the trial judge’s statement of why he dismissed these other actions. The whole point of our opinion is that if two drivers of automobiles have an accident and a jury finds as a fact that this accident was caused by the concurrent contributory negligence of each which directly and proximately contributed to this accident then there is no lawsuit, and no one has a right to recover as a result of this collision.
We have carefully and thoughtfully considered this petition to rehear and have not brushed it aside as we probably had a right to do because these issues were not *164raised iñ Smith and Kindrick ’s petition for certiorari. Berry v. Foster, 199 Tenn. 352, 287 S.W.2d 16. But we have considered the matter on its merits, and having done so we must deny the petition to rehear.