— (dissenting).—I concur in the reversal for other reasons; but I cannot assent to the proposition that the general charge should have been given on the ground that plaintiff failed to show thht he was an employee rather than an independent contractor. Plaintiff assumed the burden of proving that he was an employee of course. But when plaintiff proved his employment as a manual laborer to dig coal, prima facie he showed that he was an employee within the meaning of the Employer’s Liability Act, and the fact that he was paid by the ton was not sufficient to make of bim *127an independent contractor as matter of law. On the facts proved, and on the common implications of the language used by the witnesses, I think the question whether plaintiff was an employee within the meaning of the statute was properly submitted to the jury.