#### Richardson v. Reap.

Opinion delivered March 14, 1927.

*99 DuVal L. Purlins, for appellant.

D. A. Bradham, for appellee.

Kirby, J.,

(after stating the facts). The facts in the case are virtually undisputed, the testimony showing that the glass was cracked or broken by one of the young men, McMahon, pushing or hacking against it when another, Reap, who was coming along the sidewalk, shaking hands with his friends, pushed him or struck at him in a friendly way, after being told by McMahon he didn’t want his left hand, causing him „ to dodge or ‘ ‘ hunch back,” as one of the witnesses expressed it, striking the glass and breaking it.

The testimony also shows that a hole had been broken through the glass some time before, -about two feet up from the base, a small hole through which a tenpenny nail could be passed, and the glass shivered on the inside from its being struck with a rock, and that it was weakened by this former break to such an extent as caused it to break when McMahon backed against it, and that it would not have been broken from this occurrence if it had not been defective from this former break.

In defendant’s instruction numbered 5, complained of, it was attempted to submit the question of the owner’s contributory negligence in continuing to use this broken and defective window as a defense to this suit, but this instruction did not leave the question to the decision of the jury,'but told them if they found certain facts to be true that it was contributory negligence., and the plaintiff could not recover.

This court, in Fourche River Valley & I. T. Ry. Co. v. Tippett, 101 Ark. 386, defined contributory negligence as follows: “Contributory negligence '£in its legal signification is such an act of omission on part of plaintiff amounting to the want of ordinary care as, concurring or cooperating with a negligent act of the defendant, is a proximate cause or occasion of the injury complained of.’ International & G. N. Rd. Co. v. Schubert, 130 S. W. 709. This definition of contributory negligence has been *100often approved, and the doctrine frequently applied by this court.” 'Citing many cases.

The instruction was erroneous in not leaving it to the jury to determine whether the act or omission on the part of the plaintiff in continuing the use of the glass with a hole broken in it, under the circumstances, amounted to such want of ordinary care on his part as, concurring or cooperating with the negligence of the defendant, was the proximate cause or occasion of the injury complained of and contributory .negligence barring his recovery.

For the error in giving this instruction the judgment must be reversed, and the cause remanded for a new trial. It is so ordered. .