In this case a writ of error brings for review judgment in favor of the defendant in error who was plaintiff in the court below for damages which were alleged to have been the result of an injury which plaintiff received when she fell over a bicycle rack in defendant's store.
I am unable to agree with the views expressed in the majority opinion.
The defendant filed pleas of contributory negligence, as follows:
"That the plaintiff's own negligence proximately contributed to the causing of the injury and damage complained of in this, to-wit: that plaintiff knew, or by the exercise of ordinary and reasonable care for her own safety, should have known, of the existence of the bicycle rack described in the declaration, and by the exercise of ordinary care and diligence could have avoided the accident complained of. That plaintiff's own negligence proximately contributed to the causing of the injury and damage complained of in this, to-wit: that it was the duty of plaintiff, while in the defendant's *Page 459 store, to exercise ordinary and reasonable care and caution in the manner in which she was moving upon the defendant's property, and that notwithstanding such duty she negligently and carelessly failed to use such ordinary care and caution, and by reason of such failure and negligence the injury, if any, was produced."
After the introduction of evidence, the court charged the jury as follows:
"The court instructs the jury that the defendant has failed to offer proof on the pleas of contributory negligence to such an extent as to warrant the issue going to the jury, and that that issue is taken from you, so you will not consider the evidence in the case, or the pleas of contributory negligence. Now the court is not invading the province of the jury in doing that, but assuming that all is true as testified by the witnesses for the defendant, and every inference that may be reasonably drawn from it, still in law it is insufficient to meet the test of a defense of contributory negligence, but the case of negligence remains before you and you will have to determine that, and also if you do determine it, the question of damages, that is, if you determine it in favor of the plaintiff."
And also as follows:
"The Court withdrew from the jury the issue of contributory negligence. The defendant had pleaded, you may remember the pleas that were read to you at the beginning of the trial, and those were pleaded in bar to the action, but that issue has been taken away from you. Now you can consider all of the evidence in the case bearing on the question of the negligence that is alleged in the declaration, and, too, if you find that the defendant is negligent, that the plaintiff is entitled to recover, why then, of course, you would *Page 460 consider all of the evidence in the case bearing upon the question of the amount of damages."
Without commenting on the probative force of the evidence, I think the court committed error in giving the instructions to the jury above set forth.
Whether or not under the evidence which had been submitted to the jury, the plaintiff was shown to be guilty of some contributory negligence which was partly responsible for the injury received, was, I think, a question for the jury to determine from a consideration of all that evidence and the facts that might be legitimately and reasonably adduced therefrom.
For the reasons stated, I think the judgment should be reversed and the cause remanded for a new trial.
ELLIS, P.J., concurs.
ON PETITION FOR REHEARING. Division A.