On Motion for Rehearing. It is conceded that appellee was guilty of negligence, as a matter of law, in passing an on-coming fellow motorist at an unlawful rate of speed, an instant before the accident.
So is it conceded that appellant was guilty of negligence, as a matter of law, in leaving its unlighted steam roller upon the highway, in the nighttime.
While it is true that appellee's act of negligence was completed before the accident occurred, yet nevertheless its commission had projected him into a position of peril from which he did not extricate himself.
On the other hand, appellant's act of negligence was continuous throughout the transaction, and was a flagrant one at that.
It was the prerogative of the jury, exclusively, to determine what was the proximate cause of the accident, whether it was caused by the negligence of appellant, or of appellee, or of both, or of neither.
The doctrine of comparative negligence has no place in the case of course.
The jury found that the admitted negligence of appellant was a proximate cause of appellee's injury, and the evidence was ample to support the finding. But the trial court refused to submit to the jury the correlated issue of whether the admitted negligence of appellee was likewise a proximate cause of the injury, although the evidence clearly raised the issue. In this we conclude the court erred, and it is upon this error the judgment should be reversed and the cause remanded for another trial. The appellant is entitled to have that defense submitted to a jury, since it was properly pleaded and was supported by cogent evidence.
If the issue of whether appellee was under the influence of intoxicating liquor is submitted upon another trial, it should be submitted in the language of the statute upon the subject.
With these modifications of the original opinion, the motions of both parties for rehearing are overruled.