The opinion
ON MOTION FOE BEHEABING.
• At the last term of this court judgment was rendered in this case reversing the judgment of the trial court and remanding the 'cause. For full statement of the case, see report of that case not yet published. Subsequently, on motion for rehearing, the main question in the case, upon which the judgment had been reversed, was certified to the Supreme Court, and on April 6, 1910, we were advised by that court, in answer to said question, that we were in error in our conclusion that the city was not liable for damages to the mule under the facts stated. (City of Houston v. Dupree, 103 Texas, 292 .)'
We also held that there was error in refusing the special charge asked by appellant to the effect that, in the event the jury found that the injury to the mule was not caused by the wheel of the car running upon the mule’s leg, the evidence about a man not being placed at the brake on the car should be disregarded. Hpon further consideration we have concluded that the judgment should not be reversed upon this ground alone.
The special charge given at the request of appellee submitting the issue of negligence in this respect, which we considered rendered it proper that the charge requested by appellant should have been given, has been carefully re-examined. It authorized the jury to find for the plaintiff on this issue only in case they found that the failure to put a man at the brake directly caused the injury to the mule. Under this instruction the jury could not have regarded the evidence on this issue, unless they found that the cars ran upon the mule’s leg. In such case if the refusal of the requested charge was error at all, it could not have operated to the prejudice of appellant.
The motion for rehearing is granted. Finding no reversible error the judgment is affirmed.
Affirmed.