Motion made in this cause by defendant, appellant, to-recall the mandate and judgment rendered at last term, and to award a new trial only upon the issues of negligence, contributory negligence,, and damages.

The case is reported and issues set out in 175 N. C., 650.

*187 There is no doubt as to the power of this Court to confine a new trial to such issues as the Court deems necessary to a proper determination of the issues raised by the pleadings.

There are a number of cases in our Eeports where partial new trials have been granted.

It is now too late to entertain the defendant’s motion. The case has passed from our jurisdiction and is now pending in the Superior Court of Buncombe County.

The only method by which the case could have been brought again within our control is by petition to rehear, which must be filed within forty days after the opinion has been handed down.

Motion denied.