ON MOTION FOR REHEARING.
GRAY, J.Appellant has filed a motion for rehearing, and it is claimed that the opinion of the court is in conflict with the case of Cook v. Railroad, 94 Mo. App. 417, 68 S. W. 230. In that case the following instruction was given: “ ‘Contributory negligence is a defense pleaded by the defendant and must be proven by the defendant by the greater weight of all the credible evidence in the case, and unless you believe the defendant has shown by such,’ etc., then defendant has failed to support its defense.”
The objection made to the instruction by Judge Smith, of the Kansas City Court of Appeals, was, that a jury might believe that on the issue of contributory negligence the testimony of the plaintiff himself should not be considered. The case was not reversed for that reason, and it was not necessary, to a full consideration of that case, for the court to have said what it did about that instruction.
The instruction in this case is as follows: “The court instructs the jury that with respect to the allegations of contributory negligence set up in defendant’s answer, the burden of proof rests upon the defendant, that is, the defendant must prove to your satisfaction by a preponderance of evidence that the plaintiff did not exercise ordinary care for his own protection.”
*29The instruction does not limit the proof on this issue to come from the defendant alone and his witnesses, as was the case in the opinion above referred to, but is more like an approved instruction in Burkard v. Rope Co., 217 Mo. 473, 117 S. W. 35, as follows: “The court instructs the jury that defendant must show by the greater weight of the evidence that plaintiff has been guilty of contributory negligence in order to prevent his recovery on that ground.”
If the Kansas City Court of Appeals had reversed the Cook case on account of giving the instruction cited, we would hesitate to follow its decisions, as we do not believe an instruction, even in that language, would mislead the average juror.
All- the evidence in the case being considered, it is doubtful if the court would not have been justified in refusing to submit the issue of contributory negligence to the jury. The lamp in controversy was hanging over a public highway, and we do not believe a person is guilty of contributory negligence that remains under a lamp suspended as this one was, even though a servant of the company is climbing the pole from which the lamp is suspended, to trim the same.
The motion for rehearing will be overruled.
All concur.