concurred specially as follows:—
I concur in the conclusion to which my brother Allyn has arrived, upon the ground that the instruction quoted by him. is erroneous in láw. That instruction recognizes the rule that the burden of proof was upon the plaintiff below to establish the fact that the injury resulted from the negligence of the defendant. The error exists in the latter part of the instruction, where it is held that plaintiff having made a prima facie case, it then devolves upon the defendant to overcome the case so made “by a clear preponderance of the evidence”; whereas if the evidence when all received and considered did not leave a preponderance in favor of the plaintiff, the defendant was entitled to a verdict.
I concur in the criticism of Justice Allyn upon the language o'f the tenth instruction. The fourth instruction is, perhaps, erroneous in this: “When an employee is suddenly ordered to do an unusually dangerous thing, he is not required or expected to deliberate upon the danger,” etc. The intention was, doubtless, to instruct the jury that in a case of sudden and unexpected danger, an order being given by the master, requiring instant-execution by the servant, deliberation by him as to the' danger would not be required or expected in order to free him from negligence. This would have little to do-with the suddenness of the order, but would arise from the fact that the danger was not such as might be reasonably anticipated, and was in fact unforeseen, and must be met by promptness in obeying the master’s order. The evidence is not reported to us, and consequently we are unable to say that this instruction as given would. *233actually mislead the jury. The tenth instruction may or may not be obnoxious to the criticism here urged against it, — that depends upon the evidence, and the remainder of the charge; and as that is not set forth in the brief, we are not able to say that this instruction is erroneous; there is no error upon, its face, and none is shown.