Husvar v. Delaware, Lackawanna & Western Railroad , 237 Pa. 295 ( 1912 )

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 Our order entering judgment was afterwards, on tbe application by tbe defendant, reconsidered and rescinded and in pursuance of the practice established' by Hughes v. Miller, 192 Pa. 365, tbe record was remitted with directions to the Court of Common Pleas to enter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.