¶1(concurring with Rosellini, J.) — I concur with the opinion of Judge Rosellini and make these further comments.
¶2I do not favor the form of instruction No. 15 given in this case. It was unnecessary as the jury was otherwise adequately instructed. It was a negative instruction as phrased and may have the tendency to confuse the jury as to the burden of proof. I do not feel, however, this happened here and that the plaintiff was denied a fair trial. The burden was upon the plaintiff to convince the jury by the preponderance of the evidence that there was negligence of the defendant which proximately caused the collision.
¶3Unless the jury could so find, it would not be concerned with contributory negligence, and confusion as to who was burdened with the proof of contributory negligence would be of no consequence. The plaintiff was, therefore, not prejudiced by the court giving instruction No. 15.
¶4The trial court should be affirmed.
¶5February 28,1958. Petition for rehearing denied.