Dissenting Opinion.
Ibach, J.I can not concur in the majority opinion in this ease. The trial court committed reversible error in giving to the jury on its own motion instruction No. 4. I am aware of the general rule that a single instruction need not contain the whole law of the case, that each instruction is not to be analyzed singly, but all the instructions given upon any particular subject pertinent to any case are to be taken and considered as an entirety and if as a whole they correctly state the law, the giving of one inadequate, when considered apart from all the others, will not be deemed reversible error. The reason for the above doctrine is quite apparent, but it has no application to instruction No. 4 involved in this appeal.
This is not a case where it can be said that the instruction contained a correct statement of the law as far as it went. Here the jury was given to understand the different things the plaintiff would be required to establish to enable. *393him to recover, and in the same instruction was told that if such facts were proven, then, unless plaintiff were shown to be guilty of contributory negligence, he would be entitled to a recovery, and yet the court wholly ignored the essential element of assumption of the risk. This is a mandatory instruction and such an instruction cannot be cured by subsequent instructions correctly stating the law. This can only be done by withdrawing the erroneous instruction from the jury. This proposition, I believe, is as old, and the reason for the rule is as clear and correct as the first rule hereinbefore referred to, and it seems to me so well settled that citation of authority is unnecessary. I refer, however, to some of the most important cases. Haskell & Barker Car Co. v. Przezdziankowski (1908), 170 Ind. 1, 9, 83 N. E. 626, 127 Am. St. 352, 14 L. R. A. (N. S.) 972; Pennsylvania Co. v. Ebaugh (1899), 152 Ind. 531, 534, 53 N. E. 763; Chicago, etc., R. Co. v. Glover (1900), 154 Ind. 584, 587, 57 N. E. 244; Kentucky, etc., Bridge Co. v. Eastman (1893), 7 Ind. App. 514, 34 N. E. 835; Cleveland, etc., R. Co. v. Scott (1902), 29 Ind. App. 519, 530, 64 N. E. 896. The majority opinion in this case seems to have been based largely on the case of Shirley Hill Coal Co. v. Moore (1914), 181 Ind. 513, 103 N. E. 802, recently decided by the Supreme Court of this State, where a somewhat similar instruction to the one now under consideration was held to be sufficient. We feel quite sure, however, that had the attention of the court and of the very able judge who wrote the opinion been sufficiently called to the infirmity which we have discovered, the instruction would not have been approved. Since, however, such opinion has been construed in the manner announced by the majority of the court in this case, I feel that the opinion in the Moore ease, supra, should be modified so as to conform to the rule as it is declared in very many well considered cases. If, however, it is the purpose of our Supreme Court to modify or change this rule, then I feel that it is due the trial courts and the *394bar of tbe State that tbe cases in which it has been held that the giving of a similar instruction was reversible error, be overruled.
Lairy, C. J., concurs in this opinion.Note.—Reported in 103 N. E. 953, 956. See, also, under (1) 29 Cyc. 565; (2) 31 Cyc. 101; (3) 38 Cyc. 1711; (4) 26 Cyc. 1494; (5) 38 Cyc. 1598; (6) 26 Cyc. 1496; (7) 40 Cyc. 2524; (8) 38 Cyc. 1503; (9) 38 Cyc. 1509; (10) 38 Cyc. 1440; (11) 3 Cyc. 348.