
    KINNEY v. ST. LOUIS & S. F. R. CO.
    No. 2676.
    Opinion Filed May 27, 1913.
    Rehearing Denied July 8, 1913.
    (133 Pac. 180.)
    NEGLIGENCE — Contributory Negligence — Refusal of Instructions. In an action for damages on account of an alleged negligent act of the defendant, it is not error for the court to refuse to charge the jury that the plaintiff may recover, notwithstanding his contributory negligence, if the defendant, by the use of ordinary' care, ought to have known that plaintiff was about to put himself into the dangerous position wherein he was injured.
    (Syllabus by the Court.)
    
      Error from District Court. Bryan County; James B. Armstrong, Judge.
    
    Action by P. B. Kinney against the St. Louis & San Francisco Eailroad Company. Judgment for defendant, and plaintiff brings error.
    Affirmed.
    
      J. M. Crook, for plaintiff in error.
    
      W. F. Evans, B. A. Kleinschmidt, and Fred E. Suits, for defendant in error.
   DUNN, J.

This case presents error from the district court of Bryan county. There is but one question presented, which arises on the plaintiff’s assignment of error, the basis for which was the refusal of the court to give the following instruction :

“You are instructed that if you believe from the evidence that going under the tie in question was a negligent act of the plaintiff, as the term ‘negligence’ is herein defined, but that before plaintiff did go under the tie he cautioned defendant’s servant and advised him that he was going under the' tie, that defendant’s servant then and there knew that plaintiff was going under the tie, or by the use of ordinary care ought to have knoion that plaintiff was going under said tie, in the condition and position that said tie was then in, and that at the time plaintiff was under the tie. the defendant’s servant carelessly and negligently moved said tie, and caused said tie to fall upon plaintiff and injure him, and but for this negligence, if negligence it was, in so moving said tie, the plaintiff would not have been injured, then you will find for the plaintiff.” (Italics ours.)

This question was passed upon by this court, in the case of Oklahoma City Ry. Co. v. Barkett, 30 Okla. 28, 118 Pac. 350, where in the syllabus it is said:

“In an action for damages on account of the alleged negligent act of defendant, it is error for the court' to charge the jury that the plaintiff' may recover, notwithstanding his contributory negligence, if the defendant failed to exercise reasonable care to avoid the injury after it. discovered, ór by the exercise of reasonable care might have discovered that an accident was imminent.”

The cases cited and relied upon by plaintiff are noted- and discussed in that case, and it will be unnecessary to repeat what is there said. See, also, St. Louis & S. F. R. Co. v. Kral, 31 Okla. 624, 122 Pac. 177, and cases therein cited.

The judgment’ of the’ trial court is therefore affirmed.

All the Justices concur. '  