37 Ind. App. 84 | Ind. Ct. App. | 1906
Action to recover damages on account of alleged personal injuries. Verdict and judgment for plaintiff. One ground stated in the motion for a new trial is based upon the giving of the following instruction: “(8) I instruct you that as the law now exists in Indiana the plaintiff is not bound to prove that he was free from fault in receiving his injuries. The question of contributory negligence is now a matter of defense, and the burden is east upon the defendant to prove by a fair preponderance
The instruction in this case might be held harmless as was done in Indianapolis, etc., Transit Co. v. Haines (1904), 33 Ind. App. 63, but it ought not to be necessary to declare a good instruction harmless in order to avoid reversing a judgment because of such instruction having been given, and the time to correct an inadvertence is before it has been so long acquiesced in as to become stare decisis.