
    No. 21,247.
    Clayton L. Stuart, Appellee and Appellant, v. The City of Kansas City, Appellant and Appellee.
    
    OPINION DENYING A REHEARING.
    Appeal from Wyandotte district court, division No. 3; Albert J. Herrod, judge.
    Opinion denying a rehearing and directing a new trial on certain questions filed March 9, 1918.
    (For former opinion of reversal see ante, p. 307.)
    
      H. J. Smith, Thomas M. Van Cleave, and Lee Judy, all of Kansas City, for the appellant and appellee.
    
      J. O. Emerson, and David J. Smith, both of Kansas City, for the appellee and appellant.
   The opinion of the court was delivered by

Marshall, J.:

In an opinion rendered on January 12, 1918 (102 Kan. 307), the judgment of the district court was reversed, and a new trial was granted.

The plaintiff has filed an application for a rehearing, and, in that application, asks that, if a rehearing is denied and the judgment stands reversed, the new trial be directed on the proposition on which the judgment was revérsed. The judgment. was reversed on the ground that an instruction was erroneous because it did not submit to the jury the question of the defendant’s knowledge of the dangerously playful habits of William Deeds, a fellow workman with whom the plaintiff was working at the time of his injury.

The judgment of reversal is adhered to, and a new trial is granted on the following questions: (1) Was the plaintiff injured by William Deeds, accidentally or in sport? (2) If the plaintiff was injured by William Deeds in sport, was William Deeds in the habit of indulging in dangerous play with his fellow workmen? (3) If William Deeds was in the habit of indulging in dangerous play with his fellow workmen, did the defendant have notice or knowledge of that habit?

After these facts have been ascertained, judgment will be rendered by the trial court in accordance with the facts so found and in obedience to the law declared in the former opinion.  