Chesapeake & Ohio Railway Company v. Burk

ON PETITION FOR REHEARING

Achor, J.

The appellee, in its petition for rehearing, asserts that this court erred in its opinion and decision of March 9, 1961, in which opinion this court both accepted transfer from the Appellate Court and discussed the case upon the merits of the issues involved.

The appellee, in alleging error on the part of this court, first cites the fact that the Appellate Court con-*689eluded that there was sufficient evidence before the court to sustain an instruction to the court based upon the specific allegation of negligence in plaintiff’s (appel-lee’s) complaint, to-wit:

“Tha…