City of Abilene v. Moore , 12 S.W.2d 604 ( 1928 )

On Motion for Rehearing.

It is .insisted by appellant; in its motion for rehearing, that our holding in the original opinion that special issue No. 1 did not submit two separate and distinct issues is in conflict with our holding in Estep v. Bratton (Tex. Civ. App.) 298 S. W. 145. A reading of the issues considered in the two cases, without considering the facts, pleadings, and acts of negligence relied upon in each, would justify the conclusion that they are subject to the same criticisms and contain the same vices. However, we think the conflict does not exist when the cases are analyzed. In the Estep Case two separate grounds of negligence were submitted in a single issue and there was conflicting evidence as to each, while in the instant case the entire group of facts submitted in the issue must concur to constitute one act of negligence, and, as noted, there was no fact issue made by the evidence, except as to the question of whether the exposed ditch was lighted.

We have considered the motion for rehearing; but, believing that a proper disposition of this case was made in our original opinion, the motion is overruled.