The opinion
POPE, Circuit Judge
(concurring specially).
1 think this instruction was distinctly misleading and that it was error to give it. An important circumstance in the case was the fact that when the plaintiff climbed on the car he went up in a place where he was hidden from the view of the men in the locomotive cab, contrary to the customary and accepted practice. This circumstance had an important bearing both upon the question whether the men on the locomotive were negligent, and upon the question whether the plaintiff himself was careless.
I am satisfied that with these circumstances before the jury, the giving of this instruction could serve no purpose except *146 to mislead by creating a general impression that the fact that an order was given somehow relieved the plaintiff of his burden of proof on the issue of defendant’9 negligence, and eased his duty in respect to his own care. In my opinion this instruction had the same kind of vice found in the instruction held erroneous in Atlantic Coast Line R. Co. v. Dixon, 5 Cir., 189 F.2d 525 .
I also think the instruction was bad because it did not relate to the facts in the case, for plaintiff was not ordered to go up on the wrong side of the car, although this instruction implies that he was. As to this point, however, I agree that it was not preserved by proper objection.
The problem here is whether what I think was clearly error was nevertheless non-prejudicial within the meaning of Fed. Rules Civ.Proc. Rule 61, 28 U.S.C.A. An erroneous instruction is not cured merely by adding an inconsistent correct one. Fillipon v. Albion Vein Slate Co., 250 U.S. 76, 83 , 39 S.Ct. 435 , 63 L.Ed. 853 . Cf. McCandless v. United States, 298 U.S. 342, 347 , 56 S.Ct. 764 , 80 L.Ed. 1205 ; Lynch v. Oregon Lumber Co., 9 Cir., 108 F.2d 283 . After much doubt, I have concluded that if this charge is read as a whole I must agree that the majority opinion'reaches a proper conclusion by in effect labeling this as harmless error.