(dissenting). This Court has uniformly held that parties are entitled to have their cases submitted to jury upon such of the theories advanced by them as are justified by the evidence and the law applicable thereto, and that they are entitled to instructions appropriate to such theories (See collection of cases, opinion of Mr. Justice Fellows, in People v. Rich, 237 Mich 481, 495).
A request to charge appropriate to plaintiff’s theory in this action for wrongful death, dealing with the subject of presumed due care, was duly submitted. The request was not given, either in language or in substance. The omission of the trial judge to charge the jury with respect to such presumption was, in my view, reversible error.
The opinion of Mr. Justice Sharpe shows all too clearly that plaintiff’s decedent, guilty only of faithful and timely attention to duty imposed on him by *633a contract of service, unwittingly entered a lethal trap set not by design but through the inexcusable negligence of those charged with legal duty to guard him against the ensuing tragedy. Two entrances to the trap were guarded by signs and bolted doors. The third entrance — the “logical” way of entry to service the water softener according to defendant’s own testimony — was neither bolted nor guarded by warning of any kind. It was the one by which the decedent entered eternity. No one, so far as this record discloses, bothered to call the decedent or his employer with that warning one might naturally expect of a reasonably prudent person.
Against this background of fact, and on strength of 2 warning signs, one tacked to the front or street door and one to the rear door (plus alleged sensory warning after Mr. Burk entered the house), it is said that the court should not have granted plaintiff’s request to charge No 11, which request is quoted in Mr. Justice Sharpe’s opinion.
Since plaintiff did not request peremptory instruction that his decedent was free from contributory negligence, we need not decide as in Peklenk v. Isle Royale Copper Co., 187 Mich 644, 648, whether such instruction would be appropriate to this case. It would seem, if a peremptory instruction was proper in Peklenk, such assuredly would be right for this case. Be that as it may, we are called upon to say whether plaintiff’s said request No 11 should have been granted. I think it should, under the rule that the circumsantial evidence of the decedent’s negligence, if any such be present here, is so slight and inconclusive as to require submission of the question to the jury either in the language as requested by plaintiff or in that shown in Gillett v. Michigan United Traction Company, 205 Mich 410.
As was said in the cited case (p 421):
*634“And while the jury, in weighing the evidence, may not consider the presumption, yet if, uninfluenced by the presumption, they reach the conclusion that the evidence tending to show decedent’s negligence is not entitled to credit and should be disregarded, the presumption may then be considered as remaining in force so far as may be necessary to establish the fact that the deceased exercised proper care in all respects not expressly established by the evidence. It (the presumption) was not entirely displaced, but remained in abeyance pending the jury’s reaching this preliminary decision as to the credence to be given the evidence on the particular point in which negligence was claimed.”
Plaintiff was entitled to the charge as requested, either in the language thereof or in equivalent substance. Since the trial court’s charge nowhere included or referred to the presumption of due care, and failed to submit the presumption for jury application should the jury find no lack of care on the part of decedent from the circumstances, I would reverse for new trial.
Smith, J., concurred with Black, J. The late Justice Reid took no part in the decision of this case.