Bjorman

The plaintiff brought this action to recover damages for a personal injury sustained by him, and alleged to have been caused by the negligence and gross carelessness of the defendant.

The case was tried, and the verdict and judgment were in favor of the plaintiff. The defendant moved for a new trial and its motion was granted, and, on appeal to this court, the order was affirmed. ( 92 Cal. 500 .)

The case was again tried, and the verdict and judgment were in favor of the defendant. The plaintiff then moved for a new trial, and his motion was granted, and from that order the defendant prosecutes this appeal.

The motion was granted upon the ground that the *629 court bad erred in giving to the jury two instructions, numbers five and twelve, at the request of defendant.

Instruction number five was as follows: “ The plaintiff claims that the injury to his leg was caused by the negligence and carelessness of the defendant in having a brake upon its car that was defective and improperly constructed. I charge you that the burden is upon the plaintiff to prove by a preponderance of evidence that such injury was caused by the negligence of the defendant as claimed by plaintiff, and not…