(dissenting).— I do not agree in the conclusion reached in the fourth subdivision of the majority opinion. The request for instruction therein set out was bottomed upon the thought that the question arising out of the facts sought to be proven by defendants was one of proximate cause. Fairly stated, the question was this: Was the second fall of the panel, if such there was, proximately caused by the negligence of the defendants, as charged % By *501refusing tbe request the court, in effect, repudiated the thought of proximate cause as related to the subject-matter in hand, and not onfy this, but, in the instruction given on its own motion, treated the matter as involving no more than a question of contributory negligence. Given the facts as contended for, and it is my judgment that the situation presented primarily, at least, a question of proximate cause;, and, as such question should have been submitted to the jury., there was error.
I am authorized to say that my view is concurred in by Mr. Justice McOlaiN.