(after stating the facts as above). [1] As we understand the testimony, it did not warrant the finding that appellant’s employés were guilty of negligence in attempting to get the mule off of the bridge in the way they did. Appellee’s contention is that the jury had a right to conclude from the testimony that an ordinarily prudent person, under the circumstances of the case, instead of attempting to lift the , mule out of the openings in the bridge, and have him walk off of same on the ties as appellant's employes did, would have rolled him off of the bridge, letting him fall to the ground seven or eight feet below, or, if he lifted the mule, would have so placed boards on the ties as to enable the mule to walk thereon safely, and in that way get off of the bridge. Whether the mule would have escaped injury as serious as that he suffered if one of the ways suggested by appellee had been pursued by appellant’s employés' we think is too conjectural and'uncertain to justify the finding in question. No one could possibly know what would have been the consequence to the mule had he been rolled off the bridge, nor, if appellant’s employes had floored the bridge, that they could have gotten the mule thereon, or, if they did, that he would not have jumped off of same.

[2] Appellee insists that the testimony was sufficient to support a finding that appellant was guilty of negligence in permitting its right of way fence to be out of repair as it was, and that it ought to be presumed in support of the judgment that the trial court found that appellant was negligent in that respect, and based his judgment on such neg- *367 ligenee. We do not think such a presumption is permissible. It was the duty of the trial court to render judgment on the verdict, or set it aside. Article 1990, Vernon’s Statutes. He did not set it aside. It should be assumed, therefore, that he based his judgment on the verdict, and not on a finding he made himself. We do not think article 1985, Vernon’s Statutes, which provides that on appeal “an issue not submitted and not re-guested by a party to the cause, shall be deemed as found by the court in such manner as to* support the judgment; provided, there be evidence to sustain such a finding,” authorizes an affirmance of the judgment on the theory suggested. The “issue not submitted and not requested by a party to the cause” referred to in the statute evidently is not one which without respect to findings made by the jury on issues submitted to them would warrant the judgment, but is one it is necessary to determine in connection with and in aid of those findings before judgment can be rendered thereon.

The judgment is reversed, and the cause is remanded to the court below for a new trial