On Petition for Rehearing
Royse, P. J.Appellee, in her petition for rehearing, asserts we erred in holding it was error for the trial *323court to refuse to give appellant’s instruction G (set out in our original opinion) which instructed the jury to find for appellant on the allegation in the complaint that it failed to keep any lookout for said crossing. She asserts the only proper way this question can be raised “is to réquest the trial court to withdraw the issue from the jury.” She asserts the authorities we cited were where the court refused to withdraw the issue from the jury. Second, she says if there was error it was invited error because appellant tendered instructions on this subject.
While there may be some authority tending to support appellee’s first contention, we do not believe it has merit. The ultimate effect of withdrawing an issue from the jury and directing it to find for the defendant on such issue is the same. However, even if the refusal to give such was not error, it would not change the result herein. The trial court refused to give appellant’s tendered instruction No. 7 which withdrew that issue from the jury’s consideration.
A re-examination of instructions tendered by appellant discloses it did not tender an instruction on the question of keeping a lookout. The instructions which appellee asserts did were general instructions on the burden which was upon her to sustain the material allegations of the complaint. •
Petition for rehearing denied.
Note.—Reported in 122 N. E. 2d 141.
Rehearing denied 122 N. E. 2d 738.