On Rehearing.
The motion for rehearing discloses that much time and thought have been devoted to its preparation. It deserves and has received careful consideration. But we are convinced that a correct disposition was made of this case by the original opinion. In studying again the question of law decided, we have discovered another Texas authority which was not cited by either party, and which was overlooked by us in our former study of this ease. We refer to the case of Yoes v. Texas & Pac. Ry. Co. (Tex. Civ. App.) 211 S. W. 311 (error refused). In that case a passenger sued a railway company for damages for personal injuries. The charge of the court erroneously defined the degree of care required of the defendant. The jury absolved the defendant from negligence, and found that plaintiff was guilty of contributory negligence. The judgment of the trial court in favor of defendant was affirmed by the appellate court, notwithstanding the erroneous instruction, on the ground that such error became harmless in view of the finding of contributory negligence. That was the controlling question in the case, and by refusing a writ of error therein the Supreme Court approved the holding on that point. To our minds there was a closer relation between the questions of defendant’s negligence and plaintiff’s contributory negligence in that case than in the instant case. See, also, Sellers v. G., H. & S. A. Ry. Co. (Tex. Civ. App.) 208 S. W. 397 (error refused); Lancaster & Wallace v. Gonzales (Tex. Com. App.) 287 S. W. 1094; Alexander v. Railway (Tex. Civ. App.) 287 S. W. 153 (error dismissed).
The motion will be overruled.