*155On Petition for Rehearing.
Rabb, J.In the decision of this case the facts relied upon by appellee, as justifying the giving of the peremptory instruction for appellee, were taken up as presented by it, and upon such facts it was held that such instruction ought not to have been given.
6. In the brief in support of the petition for rehearing, appellant’s counsel attributed to certain parts of the opinion a meaning which was not intended. The court did not mean to be understood as holding that the defendant must prove by his own evidence contributory negligence, but that the burden was upon him to show such facts from all the evidence. The sole fact justifying the peremptory instruction relates to the conduct of the deceased, which it is claimed was, in view of all the circumstances, negligent and contributed to her death. The burden of establishing such negligence was upon the appellee. Evidence introduced by either party bearing upon such issue was proper to be considered; but, when it was all considered, it must preponderate in favor of the charge that the deceased was guilty of negligence. There was no witness to the accident out of which the suit grew; no one who knew anything about the movements, conduct or surroundings of the deceased at the time of the accident. No witness pretends to have made any observation of the surroundings at that time. The agreed facts read in evidence could not properly be extended so as to overcome the presumption, which the law raises in favor of the deceased, that she used due care, and, standing by itself, justify the charge that the deceased was guilty of negligence.
Petition for rehearing overruled.