John Danielsen, an Infant, etc., by Hans A. Danielsen, His Guardian ad Litem, Respondent, v. Morse Dry Dock and Repair Company, Appellant

John Danielsen, an Infant, etc., by Hans A. Danielsen, His Guardian ad Litem, Respondent, v. Morse Dry Dock and Repair Company, Appellant. [MAJORITY] The only point we find raised by appellant which seems to us to deserve serious consideration is the original charge of the. court that the burden of proof as to contributory negligence was upon defendant, which was subsequently, at the request of plaintiff’s counsel, changed by the court so as to put the burden on plaintiff. Appellant’s claim is that the colloquy which took place at the time so strongly impressed the jury with the notion that the court believed the burden of proof to be on the defendant that the change in the charge still left the jury under that impression. Appellant claims this was error. We find, however, that in the Federal courts the general rule is that the burden of proof as to contributory negligence is upon the defendant, and, therefore, in no aspect of the case did the trial court commit error prejudicial to defendant. (See Central Vermont Railway v. White, 238 U. S. 507.) Judgment and order unanimously affirmed, with costs. Present — Blackmar, P. J., Rich, Kelly, Manning and Kelby, JJ.