dissenting:
Instruction 3 was a correct statement of the law, sustained by all authority and never questioned. It was abstract in form, and the criticism of instructions of that character has always been that they do not contain any hypothesis of fact, and, being merely rules of law, are not applied to the facts of the case. The instruction did not assume the existence of any fact.
Instruction 4 required that the jury should believe from the evidence the facts stated in it, and if they found from the evidence that the sole cause of the accident was negligence of the driver of the motorcycle, there was no negligence of the motorman and no liability. The instruction holding the plaintiff responsible for his own negligence was correct, and there was no implication that he was responsible for negligence of the driver.
Mr. Chile Justice Thompson, also dissenting.