delivered the opinion of-the court.

This suit was instituted in the court below by appellees to recover of appellant damages for the death of their father, William Owen, who, while attempting to cross appellant’s railroad track at a public road crossing, was struck and killed by an engine attached to, and drawing, one of the appellant’s trains. To the declaration filed in the court below, appellant pleaded “not guilty,” and also gave notice that it would introduce evidence tending to show contributory negligence on the part of Mr. Owen. On the trial of the cause there was evidence tending to show that Mr. Owen’s death was not caused by any negligence on the part of appellant’s employes in charge of the train, and there was also evidence tending to show that his own negligence contributed to his being struck and killed by the train.

At the request of appellees the court instructed the jury as follows:' “The court instructs the jury that the only defense which the railroad company in this case has presented to relieve itself from liability on account of *731the death of the deceased, William Owen, is the contributory negligence of the said deceased. That such a defense is an affirmative' defense, and the burden of proof under the law is imposed upon the defendant to sustain and make out such defense by a clear preponderance of the evidence, and if the defendant has failed to make out its case by such preponderance of the evidence, or if the evidence upon that point is evenly balanced, then it is the duty of the jury to return a verdict for the plaintiffs.” This instruction eliminated from the consideration of the jury appellant’s defense, that its employes had exercised due care on the occasion in question, and consequently the granting thereof was fatal error.

Reversed and remanded.