
    Husvar v. Delaware, Lackawanna & Western Railroad Company, Appellant.
    
      Negligence — Master and servant — Contributory negligence— Burden of proof — Instructions of court.
    
    In an action by an employee against his employer to recover damages for personal injuries, it is not error for the court to instruct the jury that the “burden of proving the plaintiff’s contributory negligence is on the defendant” where the statement is.made in connection with general instructions as to the burden of proof that rested on the parties, and where the jury was told tbat tbe plaintiff could not recover if it appeared from the-testimony tbat his negligence contributed in any degree to tbe accident.
    July 2, 1912:
    Argued May 15, 1912.
    Appeal, No. 131, Jan. T., 1912, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1907, No. 1075, on verdict for tbe plaintiff in case of James C. Husvar v. Delaware, Lackawanna & 'Western Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass for personal injuries. Before Heydt, P. J., specially presiding.
    Tbe opinion of tbe Supreme Court states tbe case. See also Husvar v. Delaware, Lackawanna & Western Railroad Company, 232 Pa. 278.
    Tbe jury found a verdict in favor of tbe plaintiff in tbe sum of $5,000, upon wbicb judgment was entered. Defendant appealed.
    
      Error assigned was in refusing binding instructions for tbe defendant.
    
      Everett Warren, of Warren, Knapp & O’Malley, with bim D. R. Reese and J. Hayden Oliver, for appellant.
    
      M. 'A, McOinley, for appellee.
   Per Curiam,

At the trial tbe plaintiff obtained a verdict but judgment was entered by the court for tbe defendant non obstante veredicto. On appeal to this court tbe judgment was reversed and judgment entered for the plaintiff. Our order entering judgment was afterwards, on tbe application by tbe defendant, reconsidered and rescinded and in pursuance of the practice established' by Hughes v. Miller, 192 Pa. 365, tbe record was remitted with directions to the Court of Common Pleas to enter judgment. This appeal is by the defendant.

When the case was here before, the judgment n. o. v. was reversed on the ground that while the plaintiff had shown only an unexplained accident, the deficiency of his testimony was supplied by testimony furnished by the defendant which showed that the timbers that supported the hopper, the fall of which injured the plaintiff, were in bad condition and that this testimony required the submission of the case to the jury; see Husvar v. Railroad Co., 232 Pa. 278. The main contention of the appellant here, that it was entitled to binding instructions, was decided against it and set at rest by the prior adjudication. The assignments of error to the charge disclose nothing that caite for reversal. The statement that “the burden of proving the plaintiff’s contributory negligence is on the defendant” was made in connection with the general instruction as to the burden of proof that rested on the parties. The jury had been before and was afterwards told that the plaintiff could not recover, if it appeared from the testimony that his negligence contributed in any degree to the accident. This was equivalent to saying that he must present a case clear of contributory negligence.

The judgment is affirmed.  