
    Lucy Lane versus William Crombie et al.
    
    In an action on the case for an injury to the plaintiff alleged to have been occasioned by the defendant’s negligence in driving on the highway, the burden of proof is on the plaintiff, not only to show negligence and misconduct on the part of the defendant, but ordinary care and diligence on his own part.
    This was an action on the case against the defendants, alleging negligence on the part of their servant, in driving a four-horse sleigh, in the highway in Waltham, by means whereof the plaintiff was run over and injured. The cause was tried before Putnam J. and a verdict was found in favor of the plaintiff. A motion was made to set aside the verdict, on the ground of misdirection, and also because it was a verdict against the weight of evidence.
    
      
      Nov. 4th.
    
    
      Nov. 5th.
    
    
      Mann, for the defendants,
    cited Flower v. Adam, 2 Taunt. 314; Selwyn’s N. P. (Wheaton’s edit.) 300; Thompson v. Bridgewater, 7 Pick. 188; and the cases referred to by the Court.
    
      Richardson and Park, for the plaintiff.
   Per Curiam.

We consider the rule to be now well settled, that to enable a plaintiff to recover under such circumstances, he must not only show some negligence and misconduct on the part of the defendant, but ordinary care and diligence on his own part. Butterfield v. Forrester, 11 East, 61; Harlow v Hummiston, 6 Cowen, 191; Smith v. Smith, 2 Pick. 621.

The judge who tried the cause so instructed the jury ; but in the course of the charge, he further stated to the jury, that the burden of proof was upon the plaintiff to prove negligence m the defendants, that being the gist of the case; but that when the defendants relied upon the fact, that the plaintiff con ducted • herself carelessly, the burden of proof was upon the defendants to show that the plaintiff had not used ordinary care.

The latter part of this direction, we think, was incorrect in point of law, and that the burden of proof was upon the plaintiff to show that the accident was not occasioned by her own negligence, in placing herself in a hazardous position, without due precaution. In the actual state of the evidence, it is extremely probable that this direction made no difference in regard to the result; still, if the evidence was such that the jury might have decided the other way upon this point, without going decidedly against the weight of the evidence, or in other words, if the evidence was doubtful and balanced, such a direction may have had an influence to mislead the jury ; and therefore the Court are now all of opinion, that the verdict must be set aside and a new trial granted.  