(dissenting.) I was absent the week this case was decided, and did not-have the benefit of the consultation, and have had to go into it on the motion for rehearing for the first time.
There were several charges of negligence against the appellant company and counter charges of contributory negligence against appellee, the plaintiff below. These issues were sent to the jury, and also the question of proper care of the motorman to avoid the injury after discovering Mrs. Barnes’s peril. The latter issue, predicated upon Mrs. Barnes’s negligence and evidence of due care and want of due care after the discovery of her peril, was a proper question for the jury to determine. All the judges agree that there was evidence sufficient to sustain a verdict either way upon that point. This should have been the only issue sent to the jury. The opinion of the court shows that Mrs. Barnes’s own testimony shows she was guilty of contributory negligence.
A majority of the judges on rehearing reaffirm that fact. Therefore all questions of negligence against the company were eliminated by her contributory negligence, save alone the negligence after discovery of her peril. It was therefore a mistake for the court to affirm the case when other issues besides this one were sent to the jury. The court can not tell whether the jury found for the appellee upon the only proper question for them to determine or upon one of the several improper grounds that they were authorized to bottom a verdict upon.
It is thoroughly settled law that it is the duty of the court to refuse instructions based on unproved or unfounded hypotheses, and it is reversible error to submit a theory not warranted by the evidence. State Bank v. Hubbard, 8 Ark. 183; Worthington v. Curd, 15 Ark. 491; Sadler v. Sadler, 16 Ark. 628; Richardson v. Comstock, 21 Ark. 69; Marshall v. Sloan, 26 Ark. 513; Burke v. Snell, 42 Ark. 57; Little Rock & F. S. Ry. Co. v. Townsend, 41 Ark. 382; Beavers v. State, 54 Ark. 336; St. Louis, I. M. & S. Ry. Co. v. Denty, 63 Ark. 175; Snapp v. Stanwood, 65 Ark. 222; St. Louis, I. M. & S. Ry. Co. v. Woodward, 70 Ark. 441. Therefore it follows that the judgment should have been a reversal, instead of an affirmance. The majority of the court concede this mistake, but say that appellant is not in position to complain of the error, as it asked instructions relating to the contributory negligence of Mrs. Barnes.
The record shows that the court gave the instructions submitting these issues, and to each of them the appellant objected, and, its objection being overruled, excepted; and thereafter the appellant asked various instructions, among others these:
“2. One who is about to enter upon the track of a street railway where she knew that cars pass frequently at considerable speed must look and listen before entering upon such track, and must so look and listen when and where so doing will enable her to see and hear a car which is so near that she can not safely pass before it.
“4, If the evidence shows that in broad daylight, with no obstacles to prevent her from seeing an approaching car, the plaintiff stepped upon the track when the car which struck her was so near that it could not be stopped in time to avoid striking her, she contributed to her own injury, and can not recover."
None of the other instructions went to the issue of contributory negligence alone; they went to- that issue in connection with the care of the motorman after discovering appellee’s peril and to other phases of the case.
Invited error is predicated upon estoppel, and is invoked properly wherever the appealing party has induced the error, or acquiesces in it, or avails himself of the error to his own advantage. It is properly applied where the complaining party asks an instruction similar to the one attacked, and in many similar instances. Klein v. German Nat. Bank, 69 Ark. 140; Long-Bell Lumber Co. v. Stump, 30 C. C. A. 260, s. c. 86 Fed. 574; Elliott, App. Proc. § § 626, 627.
But this is not such a case, nor analogous in principle to it. Here .the court, over objection and exception, gives a certain theory to the jury. Then appellant seeks to minimize the error by asking_ instructions presenting phases of the inapplicable theory which, if applicable, would be favorable to his contention. This is not availing himself of the error to his advantage, nor an acquiescence in it, but a proper effort .to reduce the effect of the error to the least harmful form. Pie has not induced or brought about the submission of this question of contributory negligence; on the contrary, has objected -and excepted to it. The court presents only such phases of it as favor appellee, and it was, in my opinion, the duty of appellant’s counsel to then ask the court to give such phases of this theory as favored his contention, so that he might properly argue to the jury that appellee was guilty of contributory negligence. The court should have said she was guilty of contributory negligence, instead of leaving it to the jury; but, having left it to the jury, it was the right and duty of ‘appellant’s counsel to see that the law on that subject was fairly explained, so that the jury could understand that she was guilty of negligence. In other words, -if the law on that subject was going to be given, every phase appi «cable should be given, and not merely that favoring appellee. When the court made shipwreck of the case, it was appellant’s duty to obtain all the salvage possible, and I do not think the seeking to save salvage from the wreck is an estoppel to complain of the cause of the wreck.
It seems to me that this application of the doctrine of invited error is beyond the principle controlling the proper application of it, and is without precedent, so far as I can find; certainly without precedent in this State. I hazard the assertion that more than half the reversals in personal injury cases found in the reports would have been obviated, had this doctrine as now applied been earlier invoked. I think this decision is revolutionary of the practice, and has no sound basis to rest upon.