On Motion of Appellant for a Rehearing.
Calling attention to a recital in the judgment that the trial court was “of the opinion that, under the findings of the jury as set out in” their verdict, “judgment should be rendered for the defendant, Dallas Railway Company, and that plaintiff take nothing,” appellants insist in their motion that we erred when we said, in the opinion disposing of the appeal, that no reason was apparent on the face of the record “why the trial court did not have a right to make the finding, involved in his judgment, that it did not appear that the motorman had actual knowledge of the peril Mrs. Beck was in from the movement of .the street car.” It is asserted that the recital shows the judgment was based entirely on the findings of the jury, and not at all on any finding made by the court, and Barnett v. Williams, 242 S. W. 348, decided by this court, is cited as determining that in the face of such a recital it cannot be presumed that the court made findings necessary to the validity of the judgment. A reference to the record in the case referred to shows the recital in the judgment therein to have been as follows: “It is therefore found by the court, upon the answers of the jury to the special issues,” etc. It may be the holdings! in the two cases are in conflict, but if it should be conceded they are, and that the one in this case is erroneous, we do not think a correction of the error would require the sustaining of the motion and a reversal of the judgment; for we do not think a finding that the motorman had actual knowledge of Mrs. Beck’s perilous position was necessarily involved in the judgment. The findings of the jury not making a case of “discovered peril,” as we determined, the judgment had sufficient support in the finding of the jury that Mrs. Beck was guilty of contributory negligence.
The motion is overruled.