On Motion for Rehearing.
Counsel for appellee stress the case of G., C. & S. F. Ry. v. Hayden, 29 Tex. Civ. App. 280, 68 S. W. 530, which in some of its fea*725tures is similar to the case before us. But in that case the court was discussing the sufficiency of the evidence and not a charge. The court distinctly say that the charge was unobjectionable, and being so held, that the evidence was sufficient to support the verdict on the issues of negligence. The question here, however, is whether the court had the right in his charge to assume the existence of negligence in appellee’s favor on the issue of appellant’s failure to warn ap-pellee of the danger shown. Had the issue been sufficiently submitted to the jury, and had the jury determined it favorably to ap-pellee, it might be that we would find ourselves compelled to sustain the finding — a question, however, which we have distinctly declined to determine. Other cases cited by appeilee have no better application, and the motion is overruled.