Wallner

On motion to dismiss appeal or affirm judgment under rule V, section 3. Pursuant to the verdict, of a jury, plaintiff was awarded damages for personal injuries caused by negligence of the defendant.

The only assignments of error are: One, that the court erred in ruling as a matter of law that the plaintiff was not guilty of contributory negligence at the time of the happening of the accident, and in instructing the jury to the same effect. Two, that the court erred in giving to the jury instructions which assumed the absence of contributory negligence,' and peremptorily instructing the jury to return a verdict in favor of the plaintiff in the event they found that defendant was negligent and that such negligence proximatcly contributed t.o the happening of the accident. Three, that the court erred in giving an instruction defining the conditions under which the jury should bring in a verdict for the plaintiff, and in omitting from such instruction the element of proximate cause.

On the first point, I think it is plainly true that there was no evidence tending to prove negligence on the part of the plaintiff. Appellant’s own statement of the facts, as well as the more complete…