I concur in that part of the opinion holding that under the evidence, defendants were guilty of negligence which proximately contributed to the accident.
I dissent from that part of the opinion holding that as a matter of law plaintiff was not guilty of contributory negligence. As I read the evidence and the authorities, the question of contributory negligence on the part of plaintiff was a question for the jury. At this point we note some interesting facts in connection with the court's instructions to the jury. In instruction number 6, the court told the jury that none of the things plaintiff did could constitute negligence, which has the effect of saying that the question of plaintiff's contributory negligence was not to be considered by by the jury. I think this instruction was error. *Page 416
But after so instructing, the court gave instruction No. 15, wherein he told the jury that if plaintiff was guilty of contributory negligence it must reduce the amount awarded plaintiff in proportion to the amount of negligence of the plaintiff. This was clearly not in harmony with instruction 6 and one or the other should not have been given. But furthermore, with instruction 15 given, it would be incumbent upon the court to define contributory negligence to the jury. The judgment roll discloses that defendants submitted to the court a requested instruction properly defining contributory negligence. This requested instruction appears in the file, endorsed by the judge as "Given," but it is not found in form or substance in the charge as read to the jury. No exception to the failure of the court to give this request No. 5 was taken, perhaps because when the court endorsed the request as "given," counsel assumed the court had given it. Clearly when instruction 15 was given, defendants' request No. 5 should have been given to enable the jury to apply instruction No. 15 intelligently.
Plaintiff argues that in fact the question of contributory negligence was submitted to the jury by instruction 15, which in effect told the jury to reduce any award in proportion to plaintiff's negligence, if he was contributorily negligent. But since the court did not define contributory negligence, and told the jury in instruction 6 that plaintiff was not negligent in anything he did, or did not do, such argument fails. For the reason given I think the judgment should be reversed.