On Motion for Rehearing.
A consideration of the motion for rehearing has convinced us that we should have rendered judgment for appellant instead of remanding the cause for a new trial. We were convinced, and so stated in the opinion, that on the evidence presented the court should have given a peremptory instruction for the defendant. We were also convinced that the evidence as to the liability of the defendant as a common carrier had been fully developed, though we were not sure that plaintiff might not, on another trial, establish liability against the defendant on other grounds. But plaintiff, on the trial, expressly abandoned the other claim of liability set up in the petition, and we have been convinced that it would be improper for us to remand <the case for the purpose of enabling the plaintiff to present evidence on this abandoned issue or to amend his pleading for the purpose of presenting new issues of liability. R. C. S. art. 1626; Anderson v. Walker (Tex. Civ. App.) 70 S. W. 1003; Archenhold v. Smith (Tex. Civ. App.) 218 S. W. 808; Arno Co-operative Irrigation Co. v. Pugh (Tex. Com. App.) 212 S. W. 470; Mitchum v. C., R. I. & G. R. Co., 107 Tex. 34, 173 S. W. 878.
The motion for rehearing is therefpre granted, and judgment rendered for the defendant.