
    Thompson, a Minor, et al., Appellees, v. Badertscher, d. b. a. Holmes Cartage Co., Appellant.
    (No. 68-173
    Decided December 31, 1968.)
    
      
      Messrs. Graham & Graham and Mr. Thomas Bopeley, for appellees.
    
      Messrs. Pomerene, Burns, Milligan & Frase, Messrs. Schuler, Miller é Schuler and Mr. Raymond Miller, for appellant.
   Per Curiam.

The instruction given is nearly identical with one approved by the Ohio Judicial Conference. See 1 Ohio Jury Instructions 309, Section 21.10(a). The phrase specifically complained of by the appellee as it there appears is, “or if you are unable to determine how the accident happened then your verdict must be for the defendant.” This phrase appears repeatedly throughout Chapter 21 of the Ohio Jury Instructions. See Sections 21.10(a) and (c), 21.30(e), 21.50(d) and 21.60(d). As we view it, tlie charge is an admonition against guessing, a way of saying that if the proof on both sides of a question is left in equipoise the party with the burden of proof must lose. See Bradley v. Cleveland Ry. Co., 112 Ohio St. 35, 40. Compare 1 Ohio Jury Instructions 141, Section 3.50(d).

Since this is as it should be, the judgment of the Court of Appeals is reversed and that of the Court of Common Pleas is affirmed.

Judgment reversed.

Taft, C. J., Zimmerman, Matthias and Brown, JJ., concur.

O’Neill, Heebert and Schneider, JJ., dissent.  