¶1 ON MOTION FOR REHEARING.
¶2 The questions presented by the State in its motion for rehearing are very difficult ones and have been given exhaustive consideration by the members of the court. This opinion will not deal with each and every phase of the questions that have been raised because we think a reversal is required by reason of the matter discussed. The original opinion correctly disposed of the appeal and we now concur in the reversal of it.
¶3 Among the very earnest contentions made, the State says that the original opinion was in error in its conclusion of the fact' that the deceased was on the turtle-back of his car at the time appellant drove through the fence, breaking a barbed wire which caught the leg of deceased, , severed an artery and immediately produced his death. Instead, the motion says that the deceased had crawled over the back of the car and onto the running board of the left-hand side which would be immediately by the side of appellant as he and a lady occupant struggled for control of the steering wheel. In this position it is thought that appellant must haye known of the presence of deceased. We have doubts about the sufficiency of the evidence on this point and such doubt should be resolved in favor of the accused. Reliance is had upon the evidence of Venson Smith who was the first witness' called by the State. We quote from his testimony on cross examination as follows:
“As to whether I said, from what I could see there in the dark, the deceased went up on the back of the car and over ontq the left-hand side — well, I couldn’t see, but that is the only way I could figure he did. I couldn’t see because it was dark, and, the best I remember, the sand was kind of flying. My judgment was that he got over the car onto the side of the car — the left-hand side, slightly angling from the east.”
¶4 This evidence is too indefinite and uncertain to place the deceased in a position where it might be presumed that appellant knew of his presence or that he was charged with knowing it. There is a lack of positiveness about the evidence, unaided as it is by any circumstances, and the jury would not be warranted *285 in finding as a fact that deceased was on. the running board in view of appellant or so nearly so that appellant should have seen him. Furthermore, the wife of deceased was in the car struggling with appellant for control of the steering wheel. She was by his side and apparently in as good position to see deceased as was the appellant. She did not see him. This is only a circumstance but a contradictory one. .
¶5 We are not discussing the other questions because that is not necessary to a final conclusion of the case, nor do we attempt to restate all of the reasons set forth in the original opinion on a particular question calling for the reversal of the case.
¶6 The State’s motion for rehearing is overruled.