The opinion
THACKER, J.
(concurring). I concur in the conclusion reached in this case and in the main in the reasoning of the opinion of the court; but although I think instruction No. 13 erroneous in part against the rights-of the defendant and in part against the rights of. the plaintiff under section 6, art. 23 (Williams’, sec. 355), of our Constitution, I think the error was invited by the defendant and that in the main the instruction was more favorable to it than it was entitled to have the same.
My reasons for saying this instruction was erroneous will appear from an examination of the following cases: St. L. & S. F. R. Co. v. Long, 41 Okla. 177 , 137 Pac. 1156 , Ann. Cas. 1915C, 422, Osage Coal & Mining Co. v. Sperra, 42 Okla, 726, 142 Pac. 1040 ; St. L.
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S. F. R. CO. v. Hart, 45 Okla 659, 146 Pac. 436 ; Gelruth v. Chas. T. Derr Construction Co., 15 Okla. 103 , 151 Pac. 875 .
And my reasons for concurring notwithstanding such error will be understood from the views expressed in my concurring opinions in the following eases: St. L. & S. F. R. Co. v. Bell, 58 Okla. 84 , 159 Pac. 336 , L. R. A. 1917A, 543; Oklahoma Railway Co. v. Thomas, 63 Okla. 219 , 164 Pac. 120 .