Haun

In denying the application for a hearing in this court after decision by the district court of appeal of the second appellate district, division one, we are not to be understood as approving the instruction discussed in the opinion to the effect that the prima facie case of negligence made by the falling of the fan "would justify a verdict in favor of the plaintiff, unless the evidence in the case negatives that prima facie presumption, and establishes to your satisfaction that it was not the result of the negligence of the defendants. " We think the italicized portion of this instruction was erroneous for the reason suggested in the opinion of the district court of appeal, namely, in leaving out the requirement that the evidence of the plaintiff must preponderate in weight and that the defendant will be entitled to judgment where the countervailing evidence merely balances but does not outweigh the case made by the plaintiff. But in view of the evidence and the charge of the court taken as a whole we cannot conceive that this defect in this particular instruction in any way *Page 592 contributed to the verdict, and therefore are of the opinion that the error must be held to be…

This appeal is taken by defendant Tally from an adverse judgment and from an order made denying his motion for a new trial. The action was one for damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of the defendants. Tally was the owner of a theater; Darnell was his employee. On a certain day in the year 1914, Darnell, having received instructions from his employer so to do, procured and installed in one of the ventilating apertures of the theater an electrically propelled fan. On the ninth day of April of the same year plaintiff, after paying the required price of admission, was occupying a seat in the theater for the purpose of enjoying the entertainment. While he was so occupied the metal fan hereinbefore referred to became detached from the connecting motor and fell, striking the head of the plaintiff and inflicting quite a serious injury, compensation for which was assessed by the jury in this action at the sum of three thousand five hundred dollars. The points upon which appellant Tally relies are few and are succinctly stated in the opening brief of his counsel. They relate wholly to the matter of giving and the refusal to…