On Motion for a Rehearing.
The language of the original, opinion disposing of appellant’s assignments attacking the court’s charge on the issue of unavoidable accident leaves room for an inference that this charge was held to be harmless solely on the ground .of the findings of the jury on other issues. We thought then and think now that the manner in which the court submitted the issue of accident, while erroneous, was harmless, because that issue was not raised by the evidence. The testimony as to how the collision occurred was very definite, and clearly showed that the resulting injury -was due either to the negligence of the motorman in charge of the street car, or to the plaintiff in driving his automobile on the track in front of the street car. There was no support in the evidence for the conclusion that the collision occurred without fault of either party. The submission of that issue was objected to by the appellee upon the grounds here stated, and that objection should have been sustained. We therefore conclude that the judgment should not be reversed for the erroneous submission of an issue not raised by the evidence.
The motion for a rehearing is overruled.