Dunklin v. Hanna

On Rehearing. If the evidence was sufficient to reasonably satisfy the jury that the hypothesis of charge 2 was true, and the condition so hypothesized was the proximate cause of plaintiff's hurt, the defendant was not guilty of actionable negligence, and the concluding expression in the charge, "* * * then Mr. E. Burnett Dunklin must be held to have assumed the risk of injury proximately caused by such latent defect, and could not legally recover anything of Dr. Hanna," though unsound, may be treated as surplusage, and the giving of the charge does not constitute reversible error.

The rehearing is therefore granted, the judgment of reversal is set aside, and the judgment of the circuit court will be affirmed. It is so ordered by the court.

ANDERSON, C. J., and GARDNER, THOMAS, BOULDIN, FOSTER, and KNIGHT, JJ., concur.