¶1(dissenting).
¶2The instructions complained of in this case are Nos. 13 and 16. Instruction No. 13 is set out in full in the majority opinion. Instruction No. 16, which is not set out, is as follows:
“You are further instructed that if you find from a preponderance of the evidence that the defendant, C. R. Taylor, was guilty of any acts of negligence alleged in plaintiff’s petition and that the defendant Happel, was also guilty of negligence which contributed to or commingled with the negligence of C. R. Taylor, and further find that plaintiff was not guilty of contributory negligence, then your verdict should be for plaintiff as against both defendants. However, if you find that there was no negligence on the part of Happel, or that such negligence, if any, did not contribute to, commingle with, or was not the proximate cause of the injuries to plaintiff, then your verdict should be for the defendant Happel. If you find by preponderance of the evidence that plaintiff did not exercise ordinary care and caution for his own safety and that plaintiff did not make a voluntary, unrestrained surrender of all care for himself to the caution of the driver and had not become mere freight in the car, then your verdict should be for the defendant Taylor.”
¶3I believe that the court erred in giving both of such instructions. A careful analysis of instruction 13 reveals that in the first part thereof, the court told the jury, in effect, that a failure on the part of plaintiff to ask that the car be stopped or to warn and remonstrate with the driver would constitute contributory negligence on the part of the plaintiff, and in the last part thereof the court told the jury, in effect, that such failure would not be contributory negligence if plaintiff was so intoxicated that he could not exercise care for his own safety. Both portions of such instruction are objectionable. 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 Okl. 419, 238 P.2d 292. Flanagan v. Oklahoma Ry. Co., 201 Okl. 362, 206 P.2d 190; Folsom-Morris Coal Mining Co. v. Scott, 107 Okl. 178, 231 P. 512; St. Louis & S. F. R. Co. v. Jones, 78 Okl. 204, 190 P. 385, 16 A.L.R. 1048; Muskogee Electric Traction Co. v. Watkins, 96 Okl. 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. The court should simply define the meaning of the term “contributory negligence” and submit the question to the jury. Kenty v. Spartan Aircraft Company, *742Okl., 276 P.2d 928, and cases therein cited. In the opinion in St. Louis-San Francisco Ry. Co. v. Robinson, 99 Okl. 2, 225 P. 986, 987, this court said:
“Article 23, section 6 of the state Constitution, provides that—
“ ‘The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.’
“Except for said constitutional provision, it might be said, as a matter of law, that the negligence of the plaintiff appearing from his own testimony, would preclude his recovery. Said constitutional provision has deprived the court of this function as to the matter of contributory negligence when same is an issue. See Dickinson v. Cole [74 Okl. 79], 177 P. 570. On error to the Supreme Court of the United States in that case (Chicago, R. I. & P. R. Co. v. Cole, 251 U.S. 54, 40 S.Ct. 68, 64 L.Ed. 133), it was held that—
“ ‘The federal Constitution does not prevent the states from leaving the defense of contributory negligence to the jury in all cases, those in which it is a mere question of law as well as those in which it is a question of fact.’
“By their verdict the jury found that plaintiff was not guilty of contributory negligence. Though this involved a question of law, the Constitution conferred upon the jury the power to pass upon the same. Mr. Justice Holmes, for the highest court in the land, in that case said:
“ ‘ … The material element in the constitutional enactment is not that it called contributory negligence fact but that it left it wholly to the jury. … As it (the state) may confer legislative and judicial powers upon a commission not known to the common law, … it may confer larger powers upon a jury than those that generally prevail. Provisions making the jury judges of the law as well as of the facts in proceedings for libel are common to England and some of the states, and the controversy with regard to their powers in matters of law more generally as illustrated in Sparf v. United States, 156 U.S. 51, 15 S.Ct. 273, (39 L.Ed. 343, 10 Am. Cr.Rep. 168) and [State of] Georgia v. Brailsford, 3 Dal. 1, 4 (1 L.Ed. 483, 484) shows that the notion is not a novelty. In the present instance the plaintiff in error cannot complain that its chance to prevail upon a certain ground is diminished when the ground might have been altogether removed.’ ”
¶4The last sentence in instruction No. 16, above quoted, is subject to the same objection as Instruction 13, in that the court told the jury that their verdict should be for defendant Taylor if they should find by preponderance of the evidence that plaintiff did not exercise ordinary care and caution for his own safety, and that plaint-tiff did not make a voluntary, unrestrained surrender of all care for himself to the caution of the driver and had not become mere freight in the car, the emphasized portion of such sentence being entirely improper and constituting an invasion of the province of the jury.
¶5The majority opinion, while not approving the instructions in question, holds that the giving of such instructions was not reversible error because there was no evidence from which contributory negligence could be inferred or presumed and that defendant was not entitled to any instructions on the question of contributory negligence at all. In fact, the majority opinion holds that under the evidence in this case the trial court should have determined as a matter of law that no issue as to contributory negligence existed for deter*743mination by the jury. In so holding, this court is committing the same error that the trial court committed, that is, it is holding as a matter of law, that a certain set of facts or circumstances does not constitute contributory negligence, which is the very thing the constitutional provision above cited prohibits.
¶6As I see it, the question presented to this court is not whether the failure of an intoxicated passenger to remonstrate with the driver concerning the speed of the car or to otherwise exercise ordinary and reasonable care for his own safety, constitutes contributory negligence, but rather the question presented is, who is to determine whether such conduct constitutes contributory negligence. This point is aptly stated and answered in the opinion in Anderson v. Eaton, 180 Old. 243, 68 P.2d 858, 859, in the following language:
“The plaintiff contends that the issue of contributory negligence was not an issue and improperly submitted to the jury for the reason that Leonard Anderson was asleep and therefore not negligent, and to support his position, he cites several cases to the effect that it is not contributory negligence, as a matter of law, for guests to be asleep in an automobile at the time of a collision. That is not plaintiff’s case here. The question in the case at bar is: Who is to determine the question of contributory negligence, the court or the jury? If plaintiff’s position be sustained, the court would determine the question as a matter of law.”
¶7The constitution plainly provides and the above cited cases all hold that it is the jury who must determine the question of contributory negligence and not the court.
¶8I therefore respectfully dissent.
¶9I am authorized to state that Mr. Justice BLACKBIRD concurs in the views herein expressed.