after stating the case: The evidence as to the negligence was somewhat conflicting, and it was, therefore, properly submitted to the jury, and the motion for a nonsuit overruled.
We will consider the exceptions in the order of their statement in the record, and in the brief of defendant.
*5691. It was competent for the witness, M. 0. Ballard, to state whether the crossing was constructed by the correct method, as he was an expert and no question was made as to this fact. An expert, having special scientific knowledge, which fits him to do so, may give his opinion about the particular matter in controversy. We said in Summerlin v. R. R., 133 N. C., 550, at p. 551: “We must infer from the record one of three things: (1) That there was evidence of the witness’s qualification, and that the fact of his being an expert was found by the court; or (2) that he was admitted to be an expert; or (3) that there was no question made in the lower court in regard to it. These inferences must be made because we cannot presume error, and the burden is upon the appellant to show it, and in this Court we must assume that every fact was proved and everything done necessary to sustain the ruling and judgment of the court below, unless it otherwise appears in the record. Nothing appears in this record tending to show affirmatively that the judge committed any error in respect to the matter we are now considering.” We do not see why, within the same principle, the testimony of the same witness as to the measurements was also not competent and admissible.
2. The evidence as to plaintiff’s present indebtedness, as compared with his sound financial condition when he was injured bore upon his earning capacity, which he alleges was greatly impaired by the injuries he received when the car was wrecked at the crossing. The impairment of his earning ability is shown by the fact that, owing to it, he has fallen behind, and whereas formerly he could and did make money and accumulate it, he is now embarrassed in his affairs and deeply involved.
3. The motion to nonsuit was, as we have said, properly overruled, because there was evidence of negligence fit to be considered by the jury.
4. There was no error in the charge as to contributory negligence. That defense must be pleaded, and the burden to show it is upon the defendant. C. S., 523; Kearney v. R. R., 177 N. C., 251; Boney v. R. R., 155 N. C., 95; and as to reasons for the change in the former rule, Horton v. R. R., 157 N. C., 146, and Owens v. R. R., 88 N. C., 502.
5. The instruction of the court as to the drunken condition of the plaintiff on the evening of the accident was manifestly correct, as the testimony he mentioned in it was all in the case as to such condition, and it was for the jury to say whether or not he was drunk, arid his contributory negligence in this respect caused the injuries.
6. The plaintiff might well assume, in the ordinary course of things, that the defendant’s crossing was in a reasonably safe condition, and had been kept so by the defendant. This question was directly involved and decided in Parks v. R. R., 124 N. C., 136, when the learned charge of O. H. Allen, I., to the jury is considered in connection with the opinion of the Court. The plaintiff surely had the right to expect that *570defendant bad performed its duty to tbe public witb respect to tbis crossing. That, of course, did not exempt tbe plaintiff from tbe duty of exercising proper care for bis own safety, but wbat was sucb care on bis part must, of course, be determined by a consideration of tbe assumption be was permitted to make witb respect to tbe condition of defendant’s crossing. It will not, we presume, be contended tbat plain1 tiff should bave assumed tbat tbe crossing was in bad condition. All tbat was required of bim was tbat be should look out for bis own safety and exercise tbat degree of care characteristic of tbe ideally prudent man, which is ordinary care under tbe same circumstances. Tbe duty of a traveler on a highway at a railroad crossing is fully discussed in Johnson v. R. R., 163 N. C., 431, witb a full citation of authorities, though it may not be so closely applicable to-the particular facts of tbis case as Parks v. R. R., supra. But tbe case of Tankard v. R. R., 117 N. C., 558, is directly in point, as it was there held tbat while it is tbe duty of one crossing a railroad in a vehicle to exercise ordinary care for tbe safety of tbe animal be is driving, which was injured, be has tbe right to assume tbat tbe railroad company has discharged its duty to tbe public by keeping tbe crossing in safe condition.
7. It was obviously right to charge tbe jury tbat tbe negligence of plaintiff, if there was sucb, would not bar bis recovery unless it directly and proximately contributed to bis injury. His contribution to bis own injury would not prevent a recovery by bim, if there was negligence by [be defendant which when compared witb tbat of tbe plaintiff was tbe proximate cause of bis injuries. McNeill v. R. R., 167 N. C., 390, where tbe doctrine of proximate cause was fully discussed by Justice Allen. Negligence which is merely passive is harmless. It must be active and efficient in producing tbe injury in order to be proximate to it.
Plaintiff was, of course, entitled to recover damages for bis automobile if it was proximately injured by tbe negligence of tbe defendant, in addition to damages for tbe injuries to herself.
Tbe court granted all of defendant’s requests'for instructions to tbe jury.
We find no error tbat was committed at tbe trial.
No error.
Stacy, J., having presided at one of tbe former trials of tbis case in tbe Superior Court, took no part in tbe present decision.