The jury must be permitted to find whether the plaintiff committed the acts charged to him, and further to say whether such acts constitute contributory negligence. Folsom, etc., Co. v. Scott, 107 Okla. 178. 231 P. 512-514. In this instruction the trial court unconstitutionally violated the province of the jury by telling them that certain things found by them, if they found them to be the facts, constituted contributory negligence.
Mines and Minerals — Duty of Mine Owner as to Safety of State Mine Inspector Inspecting Mine. Paragraphs 1 and 2 of the syllabus in the case of Folsom Morris Coal Mining Co. v. Scott, 107 Okla. 178, 231 P. 512, are adopted as 1 and 2 here. 3. Same — Scope of Authority of Mine Inspectors While Inspecting Mine.
However, granting that he was guilty of gross negligence, this does not serve to prove knowledge of his incompetency on the part of defendant. See Folsom-Morris Coal Mining Co. v. Scott, 107 Okla. 178, 231 P. 512; Burns v. Texas Midland R.R. et al. (Tex.Civ.App.) 167 S.W. 264; Alabama City, G. A. Ry. Co. v. Bessiere, 190 Ala. 59, 66 So. 805. The verdict and judgment are reversed.
It would have been error for the trial court to advise the jury that certain facts if established would or would not constitute contributory negligence. St. Louis-San Francisco Ry. Co. v. Russell, 130 Okla. 237, 266 P. 763; Folsom Morris Coal Mining Co. v. Scott, 107 Okla. 178, 231 P. 512. Plaintiff contends that the trial court erred in declining to submit to the jury his requested instruction.
"We have many times held that an instruction that if a certain state of facts is found to exist such facts constitute contributory negligence was erroneous and constituted reversible error. Folsom-Morris Coal Mining Co. v. Scott, 107 Okla. 178, 231 P. 512; St. Louis S.F.R. Co. v. Jones, 78 Okla. 204, 190 P. 385, 16 A.L.R. 1048; Muskogee Electric Traction Co. v. Watkins, 96 Okla. 284, 222 P. 996. For other cases so holding see note 14 to Art. 23, section 6, O.S.A. Constitution.
This court has many times held that an instruction to the effect that a certain state of facts would or would not constitute contributory negligence was erroneous and constituted reversible error. City of Norman v. Sallee, 205 Okla. 419, 238 P.2d 292. Flanagan v. Oklahoma Ry. Co., 201 Okla. 362, 206 P.2d 190; Folsom-Morris Coal Mining Co. v. Scott, 107 Okla. 178, 231 P. 512; St. Louis S.F.R. Co. v. Jones, 78 Okla. 204, 190 P. 385, 16 A.L.R. 1048; Muskogee Electric Traction Co. v. Watkins, 96 Okla. 284, 222 P. 996. Under Sec. 6, Art. 23 of the Constitution of this state, the jury alone can determine whether such facts as they find to exist constitute contributory negligence, and the court should not invade the province of the jury by instructing them that a certain fact or circumstance, or a given set of facts or circumstances, does or does not constitute contributory negligence.
Plaintiff further contends that the court's Instructions Nos. 10, 11 and 12 are fatally defective as they told the jury that the acts of the deceased constituted contributory negligence. In support of that contention plaintiff cites the cases of Folsom-Morris Coal Mining Co. v. Scott, 107 Okla. 178, 231 P. 512 and Owens v. Turman Oil Co., 183 Okla. 182, 80 P.2d 576. In the latter case, we said:
With reference to the first requested instruction we have many times held that an instruction, that if a certain state of facts is found to exist such facts constitute contributory negligence, was erroneous and would constitute reversible error. Flanagan v. Oklahoma Ry. Co., 201 Okla. 362, 206 P.2d 190; Folsom Morris Coal Mining Co. v. Scott, 107 Okla. 178, 231 P. 512; St. Louis S.F.R. Co. v. Jones, 78 Okla. 204, 190 P. 385, 16 A.L.R. 1048; Muskogee Electric Traction Co. v. Watkins, 96 Okla. 284, 222 P. 996. The requested instructions are contrary to the well established rule in this state and were properly refused.
We have likewise held that under the Constitution, art. 23, sec. 6, contributory negligence was at all times a question for the jury. Mascho v. Hines, 91 Okla. 295, 217 P. 856; Sweet v. Henderson, 72 Okla. 51, 178 P. 666; Folsom-Morris Coal Mining Co. v. Scott, 107 Okla. 178, 231 P. 512. The rule announced in these cases has been scrupulously adhered to in the later decisions of this court.
We have many times held that an instruction that if a certain state of facts is found to exist such facts constitute contributory negligence was erroneous and constituted reversible error. Folsom Morris Coal Minning Co. v. Scott, 107 Okla. 178, 231 P. 512; St. L. S. F. Ry. Co. v. Jones, 78 Okla. 204, 190 P. 385, 16 A.L.R. 1048; Muskogee Electric Traction Co. v. Watkins, 96 Okla. 284, 222 P. 996. For other cases so holding see note 14 to article 23, section 6, O.S.A. Constitution.