On Motion for Rehearing.
In their motion appellants, as they themselves put it, “protest vigorously” against the original opinion, with reference-to the overruling of appellants’ assignment of error No. 4, as follows: “Under assignment of error No. 4, appellants contend* that the trial court should have given a special instruction to the jury eliminating from-: its consideration any pre-existing disabilities which the evidence disclosed on the-part of the plaintiff.”
They then further quote their additional-objection made on the trial to special issue-No. 22, contending that it added something-material in that respect to their objection, as quoted in the former opinion on page 9' [page 347]: “Defendants further object to said issue for the reason that the court fails to give the jury a proper measure of damages, * * * for the further reason-that said issue does not limit the jury in its-consideration and in its answer to consider only the injuries proximately resulting from- and caused by the negligence of the defendant, and does not eliminate from the-jury’s consideration any previously existing-injury which Jose Contreras may have had' * * ⅜ 99
As supporting this “vigorous protest” on rehearing, they specially rely upon these-authorities: Gulf, C. & S. F. Ry. Co. v. Conley, 113 Tex. 472, 260 S.W. 561, 32 A.L.R.. 1183; Burlington-Rock Island Ry. Co. v. Ellison, Tex. Civ.App., 134 S.W.2d 306;: Ft. Worth & Denver City Ry. Co. v. Boze*350man, Tex.Civ.App., 135 S.W.2d 275; Panhandle & S. F. Ry. Co. v. Parrish, Tex.Civ.App., 281 S.W. 887; Standard Paving Company v. Pyle, Tex.Civ.App., 131 S.W.2d 200; Texas & New Orleans Ry. Co. v. Crow, Tex.Civ.App., 101 S.W.2d 274; Speer’s Law of Special Issues, page 401; Texas Coca Cola Bottling Company v. Lovejoy, Tex.Civ.App., 138 S.W.2d 254; Pedigo & Pedigo v. Croom, Tex.Civ.App., 37 S.W.2d 1074, 1075; Nehi Bottling Company v. Patton, Tex.Civ.App., 142 S.W.2d 900.
It is earnestly urged that this court’s former holding on this feature is in conflict with all such cited authorities especially its own in Nehi Bottling Co. v. Patton, supra.
After careful reconsideration, appellants’ so reiterated contention is overruled, upon the finding and conclusion that the present cause is easily distinguishable upon its facts from any of the cited ones, in all of which substantially these controlling elements appear :
“(1) The injuries from disease declared upon in the case existed prior to the time that plaintiff was injured by the negligence of the defendant;
“(2) Such pre-existing injuries were substantial and existed materially;
“(3) The injuries declared upon caused by the negligence of the defendant were so intermingled and closely associated with the prior existing injuries caused by disease, as to probably cause the jury to confuse the one with the other in assessing damages.”
None of these elements so existed in this case as to have entitled the appellants, even upon a proper request or a presentation of a special instruction to the court, to require the court to affirmatively exclude from the jury’s consideration neurotic injuries as having existed prior to the wreck in which this appellee was injured; in other words, the evidence here failed to raise an issue to the effect that Contreras had any neuritis at the time of or before this wreck of July 15 of 1939.
Wherefore, the rule followed in the cases cited by appellants does not apply to nor control the different situation presented here.
The appellee’s answer to appellants’ motion, in the opinion of this court makes clear that this differentiation between the two materially differing states of fact is unmistakable and requires the overruling of appellants’ motion. It will be so ordered.
Appellants’ motion for a rehearing refused.