The opinion
RAMSEY, J.
(dissenting). The opinion of the majority expresses my views down to where the majority conclude that counsel for the plaintiff in error have waived all assignments of error except one and limited their contention in this court to the sole question as to whether or not the evidence warrants a recovery in favor of the plaintiff. The petition in error assails the correctness .of the court’s instructions to the jury, and I am convinced from a careful consideration of the brief and abstract filed by plaintiff in error that its counsel did not intend to waive the assignments of error attacking the correctness of the court’s instructions. It would serve no useful purpose to review the brief and argument for plaintiff in error. Suffice it to say that in my judgment the correctness of the instructions to the jury is presented for this court’s consideration. One’s assurance of the soundness of his own conclusions is always shaken by the contrary views of his associates, but being convinced that the plaintiff in error has not waived its assignments of error assailing the correctness of the instructions to the jury, I find myself unable to conclude that the instructions to the jury fairly present the law.
The court delivered ten separately paragraphed instructions to the jury, the fourth, fifth, -and sixth of which cover the question of negligence, and aré as follows:
“ (4) If you find from the evidence in this case, by a fair preponderance thereof, that' the plaintiff was allowed -and permitted by G. A. Spruell, the night watchman of the engine of the defendant company, to get on the pilot step of the engine of defendant while said Spruell was in the operation of said engine for defendant, and that it was dangerous for plaintiff -at his age and experience to be -there, and you further find that it was negligence on the part of said Spruell in allowing or permitting said plaintiff to be on said pilot step while said engine was in motion, if he did so allow and permit him at said time, and you further find that the plaintiff was thrown off, or fell off, of said pilot step and was permanently injured, and that his injury was proximately caused by the negligence, if any, of said Spruell in permitting him to be on the pilot step of the engine while said engine was in motion, then you will find for the plaintiff against the defendant, unless you find that the plaintiff was guilty of contributory negligence.
“(5) If you find that G. A. Spruell saw and permitted the plaintiff on the pilot of the engine while the engine was in motion, and, you' further find that the plaintiff under the circumstances was in a perilous position, and you further find that G. A. Spruell realized that the plaintiff was in -a perilous situation and moved the engine under such circumstances, and you further find that it was negligence for G. A. Spruell to move said engine while the plaintiff was on the pilot step thereof, and said negligence, if any, was the proximate cause of said plaintiff’s injury, it would be your duty to find for the plaintiff.
“(6) If you believe from the evidence that plaintiff’s injury, if any, was caused by the negligence of the plaintiff in trying to ■alight from -the engine while the same was in motion, and that the rate of speed at which the engine was running would cause an ordinary boy of the age, knowledge, and experience of plaintiff to realize the danger incident thereto, if will be your duty to find a verdict for the defendant.”
The ability of a person standing on the pilot step of an engine -to appreciate the incidental dangers and take care of himself under the circumstances, is not important solely for the purpose of determining whether or not the .person standing on the pilot step was guilty of contributory negligence. There is no such thing as contributory negligence in the absence of negligence on the part of
*287
the defendant. The first question ip. every case of this character is this: Was there any primary negligence? Was the defendant guilty of negligence? And if the defendant was not guilty of negligence, then the case ends. Here was a hoy, past 15 years of age, who had been around the engine and cars in friendly association with the watchman for about two weeks prior to the injury; he had learned to make signals, and was not alone 'interested from curiosity; he wanted to learn the railroad business, and there is nothing in this record to indicate that he was not entirely normal for a boy of his age, It is true he had not been attending school very much, but just how much the record does not plainly say; and then, besides, so-called book learning in either public or private schools is not a correct test of a boy’s ability and competency to understand the dangers incident to standing on the pilot step of a moving engine, and no test for determining whether or not a boy of his age was incapable of taking care of himself under the circumstances. It is true, he was raised in the country, but he had been working around the lumber camp, earning a man’s wages, and so far as this record is concerned, there is not a line of evidence, not a scintilla of evidence, showing or tending to show that he' was not a boy of ordinary intelligence for his age. He was not a “sissy boy.” The record convinces me that he was as alert and competent to take care of himself as a grown man, though I concede that the question of his competency and ability to take care of himself under the circumstances was a proper question to submit to the jrary. While the age, ability, and competency of a trespasser are 'immaterial where the master’s servants discover him in a perilous position from which he apparently cannot extricate himself, the position in and of itself is not sufficient. Whether the position of a trespasser or mere licensee is perilous in the sense that it creates a duty on the part of the railroad to -exercise ordinary care to avoid injuring him depends upon something more than the place occupied. In addition to the place occupied, one of three things must appear to the railroad’s servants: (1) either that he did not know of his danger or peril and therefore could not be presumed to take care of himself, or (2) that he knew of his danger but could not extricate himself, or (3) that he could not extricate himself from his place of peril, irrespective of whether or not he had knowledge thereof. Being a trespasser or mere licensee, plaintiff is not in a position to invoke the doctrine of apparent authority of the watchman, and can only hold the company liable for acts of the watc’unan done within the scope of his actual authority, express or implied. Elliott on Railroads, vol. 3, sec. 1255. The majority opinion expresses my view in holding that the watchman in moving the engine was within the scope of his service. Büt I am convinced the plaintiff must show something else in addition to the moving of the engine by the watchman. No one will contend that the plaintiff was a passenger and that the railroad owed him the duty it owes a passenger. Finley v. Hudson Electric R. Co., 19 N. Y. Supp. 621 ; White v. Illinois Central R. Co. (Miss.) 55 South. 593 ; Clarke v. L. & N. R. Co. (Ky.) 111 S. W. 344 ; Roberts v. Southern Pacific R. Co. (Mo. App.) 150 S. W. 717 ; Flower et al. v. Pennsylvania R. Co., 69 Pa. St. 210, 8 Am. Rep. 251 . Plaintiff must show either that some act of negligence on the part of the company intervened between the starting and running of the engine and the boy’s injury which primarily caused the injury, or that the plaintiff neither had nor apparently had sufficient judgment and discretion to appreciate the peril of his position on a moving engine and take care of himself under the circumstances. The burden of proof is on the plaintiff to prove these things, one or the other. Contributory negligence is a defense, but the issue as to whether or not there was contributory negligence cannot be reached until after it has been determined first that the defendant was guilty of negligence. The instructions given by the court and excepted to by the defendant do not draw the liue between want of authority in the watchman to invite or permit the boy to be on the engine, and liability irrespective of want of authority. Instruction No. 4 is erroneous in that it substantially instructed the jury that defendant was liable if it found three concurrent things, to wit: (A) that the watchman permitted the plaintiff to go on the pilot step of the engine while he was in charge of the engine; (B) that it was “dangerous for plaintiff at his age and experience to be there”, and (C) that it was negligence for the watchman to permit plaintiff to go on the pilot step. “A”, above, is wrong, because defendant was in no way responsible for the act of the watchman in permitting the plaintiff to go on the pilot step. The watchman was wholly without the scope of his authority and not acting in the service of his master in permitting the boy to get on the pilot step. The authorities settle this beyond question. Keating v. Michigan Central R. Co., 97 Mich. 154 , 37 Am. St. Rep. 328 ; Flower et al. v. Pennsylvania R. Co., 69 Pa. St. 210, 8 Am. Rep. 251 ; Powers v. Boston & M. R. Co. (Mass.) 26 N. E. 446 ; Mahler v. Stott (Mich.) 89 N. W. 340 ; Bergan v. Central Vermont R. Co. (Conn.) 74 Atl. 937 ; Thompson v. N., C. & St. L. R. Co. (Ala.) 49 South. 340 ; Clarke v. L. & N. R.
*288
Co (Ky.) 111 S. W. 344 ; Sloan v. Railway Co., 62 Iowa, 728 ; Railway Co. v. Propst, 83 Ala. 518 ; Eason v. Railway Company, 65 Tex. 577 , 57 Am. Rep. 606 ; McDaniel v. Railway Co., 90 Ala. 64 ; Church v. Chicago, M. & St. P. R. Co. (Minn.) 16 L. R. A. 861; Roberts v. Southern Pacific Company (Mo. App.) 150 S. W. 717 ; Schulwitz v. Delta Lumber Co. (Mich.) 85 N. W. 1075 ; Curtis v. Tenino Stone Quarries (Wash.) 79 Pac. 955 ; Grimshaw v. Lake Shore & M. S. R. Co., 205 N. Y. 371 , 40 L. R. A. (N. S.) 563; Daugherty v. Chicago, M. & St. P. R. Co. (Iowa) 114 N. W. 902 , 14 L. R. A. (N. S.) 590; Foster-Herbert Cut Stone Co. v. Pugh, Admr. (Tenn.) 4 L. R. A. (N. S.) 804; 33 Cyc. 817. Now, “B”, that it was “dangerous for plaintiff at his age and experience to be there,” is erroneous, because it is coupled with the permission of the watchman, and also because it failed to make the judgment and discretion, that is, the ability of the boy, or his apparent ability to understand the dangers and take cafe of himself, the test. Also “C” is meaningless and probably harmless. The fifth instruction made the test of liability this: Was it negligence to move the engine with the plaintiff standing on the pilot step, if the jury found the watchman realized plaintiff was in a perilous position? That instruction is utterly misleading in that it fails to make the question, whether or not the running of the engine with the boy standing on the pilot step was negligence, depend on whether or not plaintiff proved that he was incapable of understanding the danger, and that his inability to understand it and take care of himself under the circumstances was apparent to the watchman, or should have been apparent to a reasonably prudent person occupying a similar position. Trespassers are presumed to take care of themselves, and the watchman had the right to presume, in the absence of knowledge or notice to the contrary, that the plaintiff understood the dangers incident to his position and' that he was competent to take care of himself under the circumstances. While plaintiff’s ability to understand the dangers and take care of himself under the circumstances was a question for the jury, there is not an authority, text-writer, or adjudicated case holding that there is a presumption that a boy over 15 years of ag.e is incompetent to understand the danger of riding on the pilot step of an engine, or incompetent to understand the ordinary dangers surrounding him. I think the court should have instructed the jury as follows:
“If you find from a preponderance of the evidence that the plaintiff, by reason of his age and want of intelligence, was not capable of appreciating the danger of riding upon the pilot step of the engine, and that the watchman invited or permitted him to get upon it, and it was apparent to a prudent man operating the engine under similar circumstances that the plaintiff was not capable of understanding the dangers incident to his position and apparently unable to take care of himself under the circumstances, then the defendant is liable for the injuries inflicted by running the engine, although defendant’s watchman may have been forbidden by the rules of the railroad and his general instructions to permit anyone to ride rapon the engine. If, however, you find that the plaintiff had such a degree of intelligence that he could and should have appreciated and understood the danger of his act, or that he was apparently capable of understanding the danger of riding on the pilot and taking care of himself under the circumstances the engine was actually run, then the burden is upon plaintiff to prove that the watchman who invited or permitted him to ride upon the engine had authority to do so, and the rules of the company forbidding employes to permit persons to ride upon the engine are admissible upon this issue, whether the plaintiff knew of their existence or not. And if under such circumstances you find the watchman had no such authority, then the plaintiff cannot recover.”
See M., K. & T. R. Co. v. Rodgers (Tex.) 36 S. W. 243 ; Elliott on Railroads, vol. 3, secs. 1254 and 1255; 33 Cyc. 817.
This court has applied section 6005, Rev. Laws 1910, in numerous cases, and time does not permit an analysis of them. That section says that no judgment shall be set aside or new trial granted by the appellate court “on the ground of misdirection of the jury * * * unless, in- the opinion of the court to which -application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in -a miscarriage of justice, or constitutes a substantial violation -of a constitutional or statutory right.” I agree with the authorities holding that it is not enough to show that the trial court committed error — the burden is on the appellant to show that the error was prejudicial. This court does not try law eases de “novo, but on -the record from the court below. Section 5002, Rev. Laws 1910, requires the court to instruct the jury. The trial judge is- not the judge of the facts, -but is the judge of the law. The jury is not the judge of the law, but of the facts. The sole and only purpose of the charge to the jury is to give it the legal rules controlling its consideration of the facts -and conclusions 'therefrom. I construe section 6005, Rev. Laws 1910, to mean this: If the instructions are erroneous in that they misdirect or fail to properly instruct the jury with respect to the legal rules controlling its deliberations on the
*289
vital- issue of fact in the case, then this court should grant a new trial or. examine the entire record and decide the case uninfluenced by the verdict. What' I understand by examining the entire record is not a mere examination for the purpose of ascertaining whether or not there is any evidence reasonably tending to support the. verdict of the jury, but whether or not the verdict of the jury is correct — the right verdict. The great weight of American authority, both federal and state, holds that in the case of error, prejudice will be presumed unless the record shows that it was harmless. 2 Standard Proc. 471. The difficulty arises in the effort to determine what is harmless and what is prejudicial error. If an instruction on an abstract or collateral question is erroneous, then it may be said to be harmless and there is no presumption of prejudice. But the parties are entitled to have the jury instructed, and that means thát the instructions are a necessary part of the trial according to law. No one denies that a party is entitled to have his case tried by law and according to legal principles. When the error is in the concrete, goes to the very marrow of the vital question of fact involved, how can this court decide whether or not the error was prejudicial unless it examines all the facts and decides that the verdict should have been for the winning party? When the erroneous instruction is not in' the abstract, but in the concrete, that is, an instruction going to the very marrow of the question, and it is erroneous, then one or the other of two things must be done by this court: (1) Either the judgment should be set aside and the case remanded for a new trial on the groiund that it is a statutory and constitutional right of a party to have correct and legal instructions given to the jury, and that erroneous instructions in the concrete amount to a denial of a constitutional or statutory right; or (2) this court must examine all the evidence — that is, consider the evidence independent of and uninfluenced by the jury’s verdict, consider, the evidence de novo, and arrive at its own conclusion — and if from an examination of all the evidence, this court decides that the winning party was not entitled to the verdict, then the ease should be reversed. In my opinion, it is more important to maintain -the integrity of the law than it is to sustain the isolated verdict of a jury. When the error goes to the marrow of the case, when the erroneous instruction is misleading on the vital issue of fact, then the judgment should be reversed or this court should examine the evidence de novo on the theory that the adjudicated error in the instruction sets the matter at large and confers upon this court jurisdiction to examine the evidence for the purpose of deciding the question of faet. put in issue between, the parties, as distinguished fr.om the usual and-established rule that this court in law cases passes only upon questions of law, and not upon questions of fact. Whether . there .is sufficient evidence to go to the jury in the first instance is a question of law. McDonald v. Strawn (decided by this court June 1, 1920 ) 78 Okla. 271 , 190 Pac. 558 . Without an examination of all the evidence uninfluenced by the verdict of the jury, this court cannot say whether or not there has been a miscarriage of justice. If this is not. the correct construction of section 6005, Rev. Laws 1910, then there is no reason or sense in the court giving the jury any instructions whatever. No instructions are better than erroneous instructions, and if erroneous instructions on the vital issue do not set the matter at large, and> call upon 'this court to examine all the evidence with a view to deciding whether or not the verdict was for the right party, irrespective of the verdict of the jury and uninfluenced thereby, then instructions to juries should be abolished in this state. The human mind has devised no art by which the mental processes of a jury can or may be discovered. No one will have the hardihood to dispute the assertion that it is better to give a jury no instructions than to give a jury erroneous instructions, and yet if instructions, erroneous in the concrete, have no further effect than to call upon this court to discover whether or not there is any evidence reasonably tending to sustain the judgment, although the preponderance of the evidence may be for the losing party, then such rule should be clearly and unequivocally announced in order that a movement may be brought about either to abolish all instructions to juries, and leave juries the triers of the law and the facts, or repeal or amend section 6005, Rev. Laws 1910.
Believing -the instructions to be erroneous on the vital question in the case, I pass to an examination of the facts uninfluenced by the verdict of the jury. Here was a boy past 15 years of age who had been around the engine and cars in friendly association with the watchman for about two weeks prior to the injury; he had learned to make signals, and was not alone interested from curiosity; he wanted to learn the railroad business, and there is nothing in this record to indicate that plaintiff was not entirely normal for a boy of his age. There is nothing in the record to show that he was not as competent as a full grown man to appreciate the dangerous position he occupied on his own volition, and to fake care of himself ■under thé circumstances. Plaintiff does not contend that any act of the watchman or any ■ defect in the machinery caused him to fall
*290
off: tile engine. He had been working in the lumber camps, working with hds father running a saw, and drawing a-man’s wages. He weighed 130 pounds. The pilot step of an engine is made for the very purpose of riding on it during switching. The boy was holding on to the hand-holds and no defect in the hand-holds or engine or road-bed caused him to fail off. I do not reach the question of contributory negligence. The first question is: Was the defendant negligent? And that depends on whether or not it owed him any duty. The watchman had no authority to permit the plaintiff, a trespasser, to get on or ride on the engine pilot. But when the watchman found him on the engine pilot, the question is whether or not starting and running the engine without steam, at a speed not in excess of 2
y2
miles per hour, constituted primary negligence on the part of the company. Under all the facts and circumstances, I am of the opinion the plaintiff has not shown primary negligence by a preponderance of the evidence, and I think the judgment should be reversed.