On Second Motion for Rehearing
Appellant answers our opinion on rehearing'by contending that “an expían-*223atory instruction on the burden of pro'of and “framing the issue so as to properly place the burden of proof” are not the same thing. In the first instance appellant concedes that in order for it to complain on appeal a correctly worded explanatory instruction must have been submitted to and denied by the trial court. In the second instance, the issue involved being one relied on by appellee, appellant asserts that a simple objection suffices.
We believe appellant to be incorrect m its premise. An explanatory instruction on the burden of proof and framing an issue so as to place the burden of proof serve the same purpose and are, in substance, equivalent, the difference being in form only.
Since the issue in question was not defective we remain convinced that an objection only was insufficient to form a valid basis for complaining that an instruction on the burden of proof either separately or by embodiment in the issue was not given.
Appellant challenges the statement in our original opinion that appellee on February 14/ 1955, “while in the course of his employment he climbed or jumped into a sewer ditch and struck his right. knee on or with an air hammer.” ■
The jury found that appellee was injured on February 14 while descending into a sewer ditch — issue 1, and he testified:
“A. Yes, sir. I believe it was, when I was carrying the air hammer down into the ditch; in getting down into the ditch the end of it struck my leg.”
Appellant also challenges our statement that there is evidence to support appellee’s testimony that he quit work on February 14. The testimony of the witnesses as to the date February 14 may be stated to be not clear and the statement in our original opinion is accordingly so corrected. However, in view of' the jury’s finding the matter is not material to our decision. Moreover appellant City made no effort to dispute appellee’s testimony relative to his quitting work, returning to his job and leaving again February 14.
Our opinion is corrected as above stated and appellant’s .motion is in all other respects overruled.
Motion overruled.