Opinion
No. 8029
Opinion Filed November 28, 1916.
Same as syllabus in A., T. S. F. R. Co. v. Jamison, 46 Okla. 609, 149 P. 195.
(Syllabus by Brunson, C.)Error from District Court, Alfalfa County; James B. Cullison, Judge.
Action by George T. Jamison against the Atchison, Topeka Santa Fe Railway Company. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.
J.R. Cottingham, S.W. Hayes, Geo. M. Green, and Chas. H. Wood, for plaintiff in error.
Geo. W. Partridge and M.C. Garber, for defendant in error.
This case presents error from the district court of Alfalfa county, where it was tried after being remanded by this court in its opinion of May 25, 1915, A., T. S. F. R. Co. v. Jamison, 46 Okla. 609, 149 P. 195. It is now again before us on the identical pleadings, facts, and questions.
The defendant in error admits in his brief that this case was tried on the same pleadings and with practically the same proof as upon the occasion of the former trial, and it is clear to our minds that the decision in the case on the former appeal is decisive of the questions presented by this record.
It is contended that the court committed prejudicial error in failing and refusing to instruct the jury upon contributory negligence. We have examined the instructions given by the court in this case to the jury, and they do not squarely present that issue to the jury, and in the language of the court in the former trial:
"Although requested by defendant, the court wholly failed to charge the jury as to the defense of contributory negligence. * * * which had been properly presented by the pleadings and evidence, considered by the jury, under appropriate instructions."
Because of the error of the court in failing to instruct the jury as above indicated, the judgment should be reversed, and the cause remanded to the trial court with instructions to set aside the judgment and grant a new trial.
By the Court: It is so ordered.