¶1 after stating the case: Without adverting to the exceptions noted in determining the first issue, and which may not arise on a second trial, the court is of the opinion that the defendant is entitled to a new trial for errors in the charge on the issue as to contributory negligence and on the issue as to damages. On the second issue the court charged the jury as follows: “If the plaintiff was asleep and was thrown off the car by a sudden jerk caused by the negligence of the engineer or by pulling out the slack, and that said slack was the result of having no brakes on the cars, then you should answer the second issue ‘No.’ ”
¶2 If the negligence of the plaintiff in going to sleep on a moving train concurred with the defendant’s negligence as the proximate cause of the injury, or one of them, this would be an instance within the very definition of contributory negligence, and in such case the issue addressed to that question should be answered yes. Beach Cont. Neg., sec. 7; 7 Am. & Eng. Enc. (2 Ed.), 373. This error would seem to have been an inadvertence on the part of the judge below, but *461 it appears as an exception in the record and is material, and necessitates a new trial of the issue,
¶3 There was an issue framed on the question whether, notwithstanding the negligence of the plaintiff in going to sleep, the defendant could not then have avoided the result, and there is evidence tending to support such a claim. The jury, however, were not required to respond to this issue, and the part of the charge here referred to was confined to the issue of contributory negligence, and the error is not cured by any explanation.
¶4 Again, on the issue as to damages, the court told the jury that having determined the decreased earning capacity for a year, they must multiply that sum by 41%, the expectancy of the plaintiff as fixed by the mortuary tables. The error here consists in making the mortuary tables’conclusive as to the plaintiff’s expectancy; whereas, by the very language of the statute, they are only evidential to be considered with all other testimony relevant to the issue. The Revisal, 1905, sec. 1626, says that these tables shall be received “as evidence, with other evidence, as to the health, constitution and habits of such person, of such expectancy. …”
¶5 There will be a new trial on- all the issues and it is so ordered.
¶6 New Trial.