Opinion
No. 42,355
Opinion filed February 20, 1962.
Appeal from Shawnee district court, division No. 2; PAUL H. HEINZ, judge. Opinion filed February 20, 1962. Rehearing denied. Original opinion: 189 Kan. 14, 366 P.2d 1009.
OPINION ON ORDER DENYING REHEARING
The opinion of the court was delivered by
In the petition for rehearing counsel has convinced the court that an erroneous statement was made in the opinion of the court, ante, p. 14. This statement had to do with the matter of contributory negligence and the special question to the jury No. 5. The court became overpowered with the language of section 8-547, G.S. 1949. It has been the rule of this court at least since Union Pac. Ry. Co. v. Hand, 7 Kan. 380, at page 388, that the burden of proof as to the issue of contributory negligence is on the defendant. See further, Hoff v. Johnston, 186 Kan. 214, 349 P.2d 873; Stephens v. McGuire, 184 Kan. 46, 334 P.2d 363; Avery v. City of Lyons, 183 Kan. 611, 331 P.2d 906. Anything said to the contrary in the opinion in the case at bar is hereby disapproved.
As to the other issues in the case, the petition for rehearing is denied. It is so ordered.