Dissenting:
I concur in the conclusion reached by the court that the instruction complained of is erroneous and should not have been given, and for this reason the judgment of the lower court should be reversed.
I am unable to concur in the conclusion reached by a majority of the court that judgment should be entered in this court for the defendant. The evidence in *356the case is, in my opinion, of such a conflicting character that the plaintiff is entitled to have a jury pass upon the same, and for this reason the case should be remanded for a new trial.