On Petition eor a Rehearing.
Biddle, J.We have had the petition for a rehearing in this cause under long and careful deliberation. It is urged upon us that, notwithstanding the erroneous instruction given, the judgment ought to be affirmed. Many cases are cited where this court has affirmed decisions over erroneous instructions, but in ’ every case the whole record, considered together, showed plainly thatthe party complaining had not been injured thereby. That is the intrinsic difficulty in the present case. We cannot clearly see by the record that the appellant was not injured by the erroneous instruction complained of. On the contrary, we have strong reasons to believe, and much ground to fear, that the appellant was injured thereby. The evidence does not clearly establish the negligence of the appellant, and there is evidence strongly tending to show, if indeed it does not clearly prove, contributory negligence on the part of deceased. In such a case, it is our duty to reverse the judgment below, and give the parties another trial.
The petition is overruled, Worden and Downey, JJ., dissenting.