In a petition for rehearing it is stated that the learned trial judge insists that no such instruction on contributory negligence as the one first discussed in the opinion was ever given, that instead of the words, "nor is it to be inferred," the instruction actually given commenced with the words, "unless it may be inferred." [10] So changed, the instruction would be a correct statement of the law. The settled record on appeal is, in the light of this statement, incorrect, but even if the record in this behalf could now be corrected to show the truth, it would make no difference in the result. [11] The gist of the opinion in this matter is that the question of contributory negligence should not have been submitted to the jury, the deceased *Page 388 being clearly guilty of contributory negligence as a matter of law. There were several instructions on the question of contributory negligence and that question was submitted to the jury.
The application for a rehearing is denied.
Angellotti, C. J., Shaw, J., Wilbur, J., and Kerrigan, J.,pro tem., concurred.