Mr. Justice Holdom
delivered the opinion of the court.
3. Evidence, § 475* — what considered in determining preponderance. In a personal injury action, where the evidence was directly conflicting as to the manner -of the occurrence of the accident, held that the number of witnesses was an important element in determining where was the preponderance of evidence. 4. Negligence, § 228* — when instruction on contributory negligence is erroneous. An instruction, in an action for damages for personal injuries, which states in a negative way the duty of the plaintiff in regard to his being in the exercise of ordinary care for his own safety at and previous to the time of the accident is erroneous. 5. Negligence, § 157*- — when burden of proof is on plaintiff. In an action for damages for personal injuries, the burden of proof is on plaintiff to aver and prove that at the time of the accident he was in the exercise of ordinary care for his own safety. 6. Negligence, § 126* — what is effect of failure to aver and prdve freedom from contributory negligence. Failure to aver and prove freedom from contributory negligence, in an action for damages for personal injuries, precludes a recovery, regardless of the negligence proven against the defendant, unless such negligence is proven to be wilful, wanton or reckless. 7. Appeal and error, § 1637* — when error in instruction is not cured by correct instruction. An error in an instruction in stating in a negative way the duty of plaintiff in regard to his being in the exercise of ordinary care for his own safety at and previous to the time of the accident is not cured by a correct instruction where it is impossible to determine which instruction was followed. Free access — add to your briefcase to read the full text and ask questions with AI