after stating the case: There áre a number of exceptions appearing on the record, but we deem it unnecessary to consider them seriatim, as, in our opinion, a new trial must be awarded for error in the charge on the issue of contributory negligence. Upon this phase of the case his Honor instructed the jury as follows: “So, if you find that the plaintiff in the case, under the contentions which the court will later lay down for you, was guilty of contributory negligence and contributed to the degree that he was guilty, yet it does not predominate,' then the defendant is not entitled to have an issue of contributory negligence answered in its favor; it must prevail by an outweighing of the contentions of the plaintiff that'he did not contribute.”
As we understand this excerpt, to which the defendant has excepted, it embodies and carries with it a statement of the principle of comparing the negligence of the plaintiff with that of the defendant. This doctrine is applicable with us, and then only for the purpose of mitigating the damages or as a partial defense, in cases arising under the Federal Employers’ Liability Act and our own statute, C. S., 3467. Williams v. Mfg. Co., 175 N. C., 226. The instant case comes under neither enactment.
Contributory negligence, such as will defeat a recovery in a case like the one.at bar, is the negligent act of the plaintiff, which, concurring and cooperating with the negligent act of the defendant, thereby becomes the real, efficient, and proximate cause of the injury, or the cause without which the injury would not have occurred. Negligence is doing other than, or failing to do, what a reasonably prudent man would have done under the same or similar circumstances. In short, it is a want of due care; and there is really no distinction or essential difference between *440negligence in tbe plaintiff and negligence in tbe defendant, except tbe plaintiff’s negligence is called contributory negligence. Tbe same rule of due care, wbicb tbe defendant is bound to observe, applies equally to tbe plaintiff; and due care means commensurate care, under tbe circumstances, wben tested by tbe standard of reasonable prudence and foresight. Tbe law recognizes that contributory negligence may be due either to acts of omission or to acts of commission. In other words, tbe lack of diligence, or want of due care, on tbe part of tbe plaintiff, may consist in doing tbe wrong thing at tbe time and place in question, or it may arise from inaction or from doing nothing wben something should have been done. Tbe test is: Did the plaintiff fail to exercise that degree of care wbicb an ordinarily prudent man would have exercised or employed, under tbe same or similar circumstances, and was bis failure to do so tbe proximate cause of bis injury ? If this be answered in tbe affirmative, tbe plaintiff cannot recover in a case like tbe one at bar. O'Dowd v. Newnham (Ga.), 80 S. E., 40. Of course, it is needless to add that under our statute, C. S., 523, where contributory negligence is relied on as a defense, it must be set up in tbe answer and tbe defendant is required to prove it on tbe trial. That is to say, tbe defendant must properly plead tbe negligence of tbe plaintiff as a defense, and be must also assume tbe burden of proving bis allegation of contributory negligence. Jackson v. R. R., 181 N. C., 153; Fleming v. R. R., 160 N. C., 196. See, also, Taylor v. Lumber Co., 173 N. C., 112, on tbe question of proximate cause.
His Honor may have bad in mind what was said in Vann v. R. R., 182 N. C., 570, but there tbe Court was speaking of tbe passive and inactive negligence of tbe plaintiff, and not such as would make him “guilty of contributory negligence,” to use tbe language employed in tbe charge here.
As the other exceptions, in all probability, will not arise on another trial, we shall not consider them now.
New trial.
Adams, J\, concurs in tbe result.