On Rehearing
SIMPSON, Justice.This response is in deference to the earnestness of able counsel on rehearing, for on original consideration we took full account of the propositions now advanced to avert a reversal of the cause but were then and are now in disagreement with the argument.
On a very careful re-examination of the case we must hold:
1. McGough Bakeries case, supra, is not authoritative; nor is the principle of that case conflictory with the pronouncement quoted from Dudley v. Alabama Utilities Service Co., supra. But in 'applying the rule of error without injury, as was done in the McGough case, the particular case in hand must be judged on its own record. As was so aptly observed long ago by Chief Justice Marshall in Ogden v. Saunders, 12 Wheat. 213, 313, 6 L.Ed. 606, 647: “It is a general rule * * * that the positive authority of a decision is coextensive only with the facts on which-it is made.” So instantly we must judge the record before us and not that in the McGough case,’ since they are not the same — as we thought had been pointed out on original deliverance.
For many years this court has pronounced reversible error in giving charges as condemned hereinabove, where their giving probably injuriously affected the party against whom given. And since in the case at bar the oral charge and the given written charges gave both correct and incorrect instructions on the applicable law of contributory negligence, we are bound to be governed by the stated principle of the Dudley v. Alabama Utilities Service Co. case and order a reversal.
2. The case of Gillespie v. Woodward Iron Co., 209 Ala. 458, 96 So. 595, cited as justifying the omission of proximate causation from a contributory negligence charge, has already been held to be inapposite in a case action in Bradshaw, Plosser & Rowe v. Hoskins, 223 Ala. 23, 134 So. 625. The court there pointed out that in the Gillespie case the action was “for damages resulting from a nuisance, not involving a question of negligence, and is not pertinent to the question presented here” (contributory negligence).
3. Likewise untenable is the argument that because plaintiff’s requested charge- 4 was given, which it is contended omitted the idea of proximate causation, error to reverse might be averted for the giving of the aforestated charges numbered 4 and 9 for the defendant. Without analyzing the correctness, vel non, of plaintiff’s charge 4, if it was bad, it was bad for a different reason from the patent illegality imminent in defendant’s said two given charges. So the principle of estoppel argued to-sustain the ruling below would in any event be inapplicable.
On a careful reconsideration, we must say we think our original opinion is sound.
Opinion corrected and extended, and application for rehearing overruled.
LIVINGSTON, C. J., and BROWN and STAKELY, JJ., concur.