On Motion for Rehearing.
Appellant insists this court erred in holding that it was in the attitude of having invited the error (if any) complained of in the trial court’s main charge, and, as showing it was not in that attitude, calls attention to the fact (-which had not been overlooked) that it objected to the part of said charge set out in the opinion -of this court. Whether appellant’s objection was made before or after it requested the special charge set out in said opinion does’not appear from anything in the record, to which alone this court can look. If the objection was made after apXDellant requested the special charge, which presumably (Nagle v. Simmank, 54 Tex. Civ. App. 432, 110 S. W. 862) influenced the trial court to instruct the jury as he did, it should, it seems to us, have been accompanied by a withdrawal of its request to instruct the jury as indicated in the special charge. As the record is presented to this court appellant was in the attitude, it seems; of objecting to an instruction which, in effect, it was at the same time requesting the trial court to give. That this is true is shown by the motion for a new trial in which appellant while complaining of the action of the court in overruling its objection to the part of the main charge specified above, without a suggestion as to why it should be heard to do so, also complained of the action of the court in refusing to give the special charge. Railway Co. v. McDonald, 85 S. W. 493; Cement Co. v. Young. 140 S. W. 378; Gestean v. Bishop, 181 S. W. 696; Railway Co. v. Smith, 155 S. W. 361; Oil Co. v. Hanna (Sup.) 173 S. W, 644.
This motion is overruled.
HODGES, J., not sitting.