(concurring) :
I agree to reverse the judgment. I desire to say, however, that I do not deem the evidence elicited under question 9 to plaintiff, and held error in the foregoing opinion, as sufficiently material for reversal. I do not regard plaintiff’s instructions Nos. 4, 5, and 6 improper. They are not abstract. There was evidence enough, surely, pertinent to their hypotheses, to save them from that impeachment. Nor were they what we may call xiartial instructions; that is, specifying certain facts as supposed to be proven, and telling the jury that, if proven, the verdict must go for the plaintiff, ignoring other facts in the case. Though the case involved contributory negligence, that did not render these instructions improper, because the plaintiff had the right to deny the presence of contributory negligence, and to have the court lay down what would be the obligation of a common carrier, if the jury should think no contributory negligence was shown. And I think there was error against defendant in refusing defendant’s instructions. The giving of certain instructions covering contributory negligence in a general sense would not exclude these, as a party has a right to specify certain facts as controlling the case, if they are proven, so they are all the material facts, — the controlling facts, — thus asking the jury to say whether those facts do exist, calling their attention to specific facts, and saying that, if they exist, they call for a verdict, for him.
Reversed.