The opinion
GRAVES, J.
While concurring in the overruling of the motion, I cannot accept the opinion upon rehearing, adhering as I do to our former disposition in all respects. My views upon the questions referred to by the Chief Justice as being majority holdings have been so fully stated in the original opinion in this cause, which at the time was concurred in by the full court, and in the dissenting opinions in the cases of Railway Co. v. Wagner, 262 S. W. 902 , and Smith v. G. H. E. Ry. Co. (Tex. Civ. App.) 265 S. W. 267 (reversed by the Supreme Court in 277 S. W. 106 ), as well as by the ánswer of the Supreme Court to the question previously certified herein ( 268 S. W. 923 ), as not to need reiteration now. Those opinions are accordingly referred to for elaboration of it.
It seems to me that the Supreme Court’s opinion upon the question so certified not only furnishes the law of this ease, but also directly runs counter to this court’s holding in the Wagner Case. How they can be harmonized is confessedly beyond the ken of this member of the appellate judiciary.
It may be pertinent to further remark, however, that the Wagner Case did not reach the Supreme Court and could not have upon the question of whether the evidence therein raised the issue of discovered peril, simply because this court reversed the judgment not upon the holding that the facts did not raise that issue, but upon the ground that the finding of the jury thereon was so against the great weight and preponderance of the evidence as to be wrong; ai matter over which the Supreme Court has no jurisdiction.