¶1On Motion for Rehearing.
¶2We reversed and remanded this case on account of the refusal of the court to give the special charge set out in our opinion herein.
¶3On motion for rehearing, our attention has been called to the fact that the requested charge assumes as a fact that the horse “had previously run away and was shyful and vicious and would jump when driven, and was not gentle,” and submitted to the jury only as to whether or not such facts were known to the plaintiff and unknown to defendant. That portion of the charge following the part above quoted the appellant was entitled, upon his request, to have submitted to the jury, and had the request been submitted in proper form, it would have been error to have refused the same. But, in the form-it was requested, it was upon the weight of the evidence, and we were in error in holding that the trial court erred in refusing to give said special charge to the jury. A charge which assumes the existence of a material fact in issue, and upon which the evidence is conflicting, is upon the weight of the evidence, and should not be given. Johnson v. Ry. Co., 2 Tex. Civ. App. 139, 21 S. W. 275; Overall v. Armstrong. 25 S. W. 440; Ry. Co. v. Davidson, 61 Tex. 205; Frank v. Tatum, 26 S. W. 903. Under such circumstances, it is not the duty of the court to correct the charge, though it be sufficient to direct attention to the question involved. Ry. Co. v. Minter, 42 Tex. Civ. App. 235, 93 S. W. 516.
¶4Motion for rehearing granted, and judgment of the trial court is affirmed.