Upon evidence which in all material respects is closely analogous to that shown by the record in the present case, it was held in Welch v. Ada Oil Co., Texas Civ. App., 302 S.W. 2d 175 (wr. ref. n.r.e.), that the trial court properly refused to submit issues of discovered peril. We approve that holding and do not agree with the contrary conclusion reached by the Court of Civil Appeals in the present case. 308 S.W. 2d 63. It appears, however, that respondents’ points attacking the verdict as against the overwhelming preponderance of the evidence were also sustained. Since the latter ruling is not subject to review here and the case must be retired in any event, the application for writ of error is refused, no reversible error. We can express no opinion, of course, as to whether the discovered peril issues will be raised by the evidence on the second trial.

Opinion delivered February 26, 1958.

Rehearing overruled March 26, 1958.