I concur in tbe result reached, but I do not agree with all that is said in the first paragraph of the opinion above. In my judgment the trial court entertained the correct view that the evidence presented a question of contributory negligence, and this was properly submitted to the jury.
In view of the definition of negligence adopted by this court in Birsch v. Citizens’ Electric Co., 36 Mont. 574, 93 Pac. 940, I think the instructions given fairly cover the question of contributory negligence, and that the instruction tendered by defendant •merely emphasized the rule, without stating any different proposition of law. Under such circumstances, the trial court cannot be put in error because of the language employed to express the rule, when it appears, as it does from this record, that the jurors must have understood the principle announced by the court for their government.