The winter of 1880-’81 was unusual in its severity and changes of temperature, in consequence of which, by reason of successive freezings and thawings, a large mass of stone and dirt, forming the upper portion of a deep “cut” through which the railroad ran, becoming loosened, on the night of January 7, 1881, was precipitated on the track. The intestate of plaintiff, an engineer in the employment of defendant company, and as such in charge of the fast mail train then moving rapidly southward from Thomasville, its last stopping place, a little after the hour of eleven P. m., brought the train in sudden and violent contact with the unobserved obstruction, from the shock of which the intestate and the fireman were both instantly killed.
The night was dark; snow lying on the ground to the depth of three'or four inches, but not on the slopes of the “cut”; and another train had passed over the place of the disaster safely, about a half hour before. The approach to the “cut” from Leonard’s bridge is on a grade of fifty-two feet to the mile, and an ascending train can be brought to a stop in half the time required upon a level track. The head-lights of the engine, aided by that reflected by the sides of the “ cut,” project the light some one hundred yards in advance, at which distance an object of four feet in diameter would be rendered visible to one on the. *504watch for-an obstruction, and, within this space and at this grade, a train of three cars moving at a speed of thirty miles an hour, by means of the air-brakes and reversing lever, could be arrested in running seventy-live yards, or, as others skilled in working engines thought, one hundred yards.
The train that met the disaster was nearly an hour behind schedule time when it left Greensboro, and the intestate and the conductor were both directed by the master of trains at that station not to make up lost time, and the conductor reminded the intestate of this order while wood was being taken in at Thomas-ville.
The rules of the company require a reduction of speed at .Leonard’s bridge to a rate of fifteen miles an hour. The conductor assigned to the train did not observe that the brakes were applied, or that there Avas any slackening up of the train at the bridge.
This is substantially the testimony of the witnesses, mostly the employees of the company, upon which rests the imputation of contributory negligence on the part of the intestate in bringing about the catastrophe in which he lost his own life. There Avas much evidence of the dangerous appearance of the overhanging rock and earth for a long time previous, and of the failure of the company to provide against the peril of its falling, but it is not necessary to set it out with particularity, since it Avas sufficient to enable the jnry to find the fact of the defendant’s negligence.
We propose to consider only one of the numerous exceptions appearing upon the record, and to which the brief summary of the testimony, bearing upon the intestate’s conduct and management of the train at the time of collision, is pertinent.
The court, among other instructions, charged the jury: “If the jury believe that the defendant Avas guilty of negligence, then it devolves upon the defendant to satisfy the jury by a preponderance of evidence that the plaintiff’s intestate was killed by his oavu negligence, or that he contributed to his death.”
The decisions in the courts of England and the different states *505are not in harmony upon the question, on which of the parties to an action for the recovery of damages, resulting from the negligence of the defendant, rests the burden of showing the absence or presence of negligence on the part of the plaintiff contributing thereto. “ To make out a prima facie ease,” remarks a recent author in examining the doctrine of contributory negligence, “the plaintiff must not only show negligence on the part of the defendant, but he must also show that he was in the exercise of due care in respect to the occurrence from which the injury arosej- and this is held in Maine, Massachusetts, Iowa, Illinois, Connec-ticutt, Mississippi, Michigan and Indiana; while in Pennsylvania, Missouri, Wisconsin, Kentucky, Maryland, Kansas, Alabama, Minnesota, New Jersey and California, it is held that the negligence of the plaintiff contributing to the injury complained of is a matter of defence, and that ordinarily the burden of proving it is on">the defendant. In New York and several other states the decisions are irreconcilable.” 2 Thompson on Negligence, 1176.
The class of cases which devolve this duty on the plaintiff assumes the cause of action to consist in an act or omission, involving not only negligence in the defendant, but the exercise of proper care by the injured party, both of which must co-exist and co-operate as essential ingredients, to entitle the latter to compensatory damages. The cause of action is complex, consisting in the union of both these constituent elements, contributing to the same injurious result. The principle is stated with force and clearness by Mr. Justice Strong, of the court of appeals of New York, in Button v. Hud. Riv. R. R. Co., 18 N. Y. Rep., 248, at a term held in 1858. The intestate had been run over and killed by a horse-car of the defendant, moving along West street, in the city of New York, at the hour of eleven in the night. “If the intestate was negligent, and his negligence concurred with that of the defendant,” he observes, “the plaintiff had no cause of action. The reason why no right of action would exist is, that both the intestate and defendant’s being guilty of negligence, they were the common authors of what immediately flowed from it, and it *506was not a consequence of' the negligence of either. The court cannot accurately and will not undertake to discriminate between them, as to the extent of the negligence of each. Neither, therefore, could allege against the other any wrong, and without a wrong there can be no legal injury. In this view, the exercise of due care by the intestate was an element of the cause of action. Without proof of it, it would not appear that the negligence of the defendant caused the injury.”
There are many cases where the doctrine is maintained, that proof by the plaintiff of his own exerbke of due care constitutes part of his case, and in its absence there can be no recovery. Thus, in Lane v. Crombie, 12 Pick., 177, where the plaintiff was run over by a sleigh; in Dyer v. Tallcott, 16 Ill., 300, where the injury was produced by the plaintiff’s running against a rope stretched over and concealed in the waters of Chicago river by tire defendant; and in Perkins v. R. R. Co., 29 Maine, 307; Walker v. Herron, 22 Texas, 55, and the large number of cases referred to in the notes to Wharton on Negligence, § 427; Sher. & Redf. Neg., § 43, note 2; 2 Thomp. Neg., 1085, 1176, 1177, notes 1-8.
On the other hand, the contrary is distinctly declared and the true rule said to be, that contributory negligence is wholly a matter of defence to be set up in the answer and proved on the trial. The cases of this import will be found in notes to the same works, Whar., § 428; Sher. & Redf., § 43, and authorities on either side collected in the addenda, pp. 12, 13; 2 Thomp., 1177. It is held in R. R. Co. v. Gladmon, 15 Wall., 401, where a small child of seven years was injured by a car; and in R. R. Co. v. Horst, 93 U. S. Rep., 291, where the injury was sustained by the party while traveling on a cattle-train of the company, the supreme court of the United States say that the onus of showing the plaintiff in fault rests upon the defendant, and will not be available as a defence unless established by a preponderance of the evidence.
In Johnson v. R. R. Co., 6 Duer’s Rep., 21, the plaintiff, in *507avoiding a danger apprehended from another direction, came in contact with a passing car and was killed. The proofs left the matter in doubt as to the plaintiff’s exercising proper care, and the court ruled that the evidence should have gone to the jury. To the same effect are Thompson v. R. R. Co., 51 Mo., 190; R. R. Co. v. Rowan, 66 Penn. St. Rep., 393; Hoyt v. City of Hudson, 41 Wis., 105.
While we do not undertake to reconcile the divergent decisions in reference to the burden of proof, we think a clear deduction from them, and as well supported by sound reasoning, is, that if in disclosing the facts which constitute the defendant’s negligence, it does not appear whether the plaintiff exhibited the necessary watchfulness and care to avoid the consequent harm or injury, it will be assumed there was no such want of it on his part; and if the plaintiff in any legal sense were the cause or the concurring cause of his own injury, the duty of so showing in self-exculpation devolves upon the defendant. The inference of this co-operating agency may be drawn from the plaintiff’s proof of the defendant’s neglect or misconduct, as well as by substantive and independent testimony produced by the defendant. “It is true,” remarks Chief-Justice Thompson in R. R. Co. v. Rowan, supra, “if negligence appear by the plaintiff’s own testimony, the defendant might rest upon it as securely as if proved by himself. As the love of life and the instincts of self-preservation are the highest motive for care in any reasoning being, they will stand for proof until the contrary appears.”
But whatever may be the difficulty felt in an attempted reconciliation of the opinions entertained and expressed, or the laying down any rule of universal application on the subject, we think all the cases tend to the point, that when all the testimony is before the jury to establish a negligence in the plaintiff concurring with that of the defendant, and both contributing to the act from which the injury springs, it must be left to the jury to determine whether, upon the facts proved, the plaintiff has a legal cause of action against the defendant. The rule of lia*508bility has its modifications even when there is mutual negligence ; for if the plaintiff’ was negligent, and the defendant, by the use of ordinary care, could have avoided doing the injury, he will, nevertheless, be subject to the action; and so, if the defendant was negligent, and the plaintiff’, by the use of ordinary care, could have escaped the injury, the latter is not entitled to recover. Leading cases, illustrative of the two latter propositions, are Davis v. Mann, 10 M. & W., 545, where the defendant, with Ids horses and wagon, ran violently against the plaintiff’s donkey, fettered and left by him negligently in the highway, when, by careful driving, the injury could have been averted; and Butterfield v. Farester, 11 East., 60, where the plaintiff rode violently against a pole put across the highway by the defendant, a free passage being left by another street in the same'direction,'and Lord Ellenborough declared that one party being in default will not dispense with another’s using ordinary care for himself; for, he remarks, “two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff.”
In the case before us, the blame ascribed to the company is not in the failure to remove the obstruction from the track during the brief space between the fall of the encumbered mass of earth and stone and the collision of the train with it, but more remotely in not examining the condition of the “cut” and removing the overhanging, menacing mass before its precipitation, and thus averting the danger and the disaster. But the direct and immediate cause of the intestate’s death was his own action in impelling the train upon the obstruction, aud his own exercise of vigilance, or want of proper care and attention, under the circumstances and at such a time, were connected with and were essential qualifications of that action, upon which the right to recover depended. The presence of one or the other gives character to the act, and, indeed, constitutes a material part of it. To the solution of this inquiry, the attention of the jury must be directed. And the distinction seems to be marked *509between those cases where the defendant’s negligence is the remote, though it be an efficient, cause of the injury sustained by the plaintiff, and those in which the plaintiff’s carelessness precedes, and that of the defendant is the direct, immediate and active cause producing the injury. In the former, the defendant’s misconduct- may be the primary, but that of the plaintiff, the direct cause, and it is difficult to see how, in examining into the plaintiff’s agency, you can separate the character of the act, as involving care or blame, from the act itself, as a matter for the jury to consider and pass upon.
In Oldfield v. R. R. Co., 14 N. Y., 310, Wright, J., says: “The circumstances under which the death occurred, as detailed by the witnesses, were not conclusive in law that the injury was occasioned by the fault of the child, or that such fault contributed to produce it. The question of the negligence of the parties was one, under the proofs when the plaintiff rested, eminently for the consideration of the jury.”
In the case cited from 66 Penn. St. Rep., the Chief-Justice remarks, that “if negligence appears by the plaintiff’s own testimony, the defendant might rest on it as securely as if proved by himself.”
So, in Robeson v. Gary, 28 Ohio St. Rep., 241, Day, J., speaking for the court, says; “It is only when the injury is shown by the plaintiff, and there is nothing that implies that his own negligence contributed to it, that the burden of proving contributory negligence can properly be said to' be cast on the defendant; for when the plaintiff’s own case raises the suspicion that his own negligence contributed to the injury, the presumption of the care on his part is so far removed that he cannot properly be relieved from disproving his oivn contributory negligence by casting the burden of proving it on the defendant * * *. The questiou should be left upon the whole evidence to the determination of the jury, with the instruction that the plaintiff cannot recover, if his own negligence contributed to the injury.”
*510Again, in O’Brien v. McGlinchy, 68 Maine, 552, decided in 1878, Peters, J., after stating the proposition that if the injured party fails to take proper precaution and care, this will not exonerate the defendant from the duty of using reasonable diligence to prevent the injury, proceeds: “But this principle would not govern when both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them; nor when the negligent act of the defendant takes place first, and the negligence of the plaintiff operates as an intervening cause between it and, the injury.”
So in Hoyt v. Hudson, supra, Lyon, J., after placing the burden on the defendant of proving facts which go to defeat the action in cases generally, goes on to say: “The rule here adopted does not apply to a case in which the proofs on the part of the plaintiff show, or tend to show, contributory negligence. If such negligence conclusively appears, the court will nonsuit the plaintiff, or direct the jury to find for the defendant. If the evidence only tends to show such contributory negligence, the question must go the jury, to be determined like any other question of fact, upon a preponderance of the evidence.”
In R. R. Co. v. Gladmon, supra, after laying down the rule, as quoted, Hunt, J., observes, “that generally, as here, the proof which shows the defendant’s negligence shows also the negligence or the caution of the plaintiff. The question of the burden of proof is therefore not usually presented with prominence.”
As the deceased, upon the evidence, while in charge of the train as engineer, ran it with great violeuce upon the obstructing fallen rubbish and lost his life by the collision, the inquiry before the jury was material in supporting the action, whether he was then in the exercise of that care and attention demanded by the circumstances for his own safety and that of the train and others upon it, and these would seem to be inseparable from his acts since, if they were wanting, the disastrous result must be attrib*511uted, not to any omitted duty od the part of the company, but to his own neglect. This inquiry, we think, unaffected by presumptions that might be raised in the absence of evidence, ought to have been submitted to the jury and determined on the weight of the evidence, as proving or disproving the intestate’s own negligence and want of care.
The error committed by His Honor consists in separating a part of the facts entering into and constituting the transaction, and drawing an inference from them, as if they were the entire transaction (admissible upon the authorities if this were true), and requiring this inference to be overcome in weighing the other facts, instead of submitting the whole evidence with directions to the jury as to the law in the one or the other aspect of their finding. We see no just grounds for dislocating so much of the evidence as tends to charge the intestate with official and personal neglect from that proving neglect in the defendant, so that the former, fortified by the attaching presumption, goes over to the jury and is made to possess a force denied to the latter in determining the general result. In law, it is just as necessary that the plaintiff be free from fault, without which the catastrophe could not have taken place, as that the defendants’s neglect of duty should have been an efficient agency in causing it. Both must co-exist as concurrent forces to exempt from liability, and the exercise of due care or the want of due care, in either, must alike be found by the jury upon the proofs in the case.
The whole controversy turns upon the point, whether the intestate on the occasion was vigilant andón the look-out, as one in his position should be, for possible dangers, or was recklessly rushing on with his train, regardless of what might happen to it, so that he failed to observe the peril in time to resort to the means of arresting its progress or diminishing its speed. If he was remiss and neglectful in this regard, his death was caused by his own act, and his administrator cannot recover. If, on the contrary, he was watchful and used due care, and the collision could not have been prevented by the use of such appli-*512anees as were at his command, then the defendant’s neglect found by the jury would render it chargeable with the consequences directly flowing from such neglect.
The question was simply as to the character or quality of the intestate’s own act, as determined by the attending circumstances; and as there is no presumption, when all the facts are disclosed, that proper care was used, so there is none that it was wanting; and the transaction should have been committed to the jury to find how the fact was.
It was not proper to burden the defence with the removal of the presumption thus raised for the plaintiff, and put it in the scale with the evidence on one side of the proposition to outweigh that adduced on the other. The inquiry should have been free from that embarrassment, and simply left to the jury to solve upon the evidence heard.
Wo reach this conclusion upon a survey of the whole subject, and in the light of judicial opinion, as a just and fair rule to be observed in such contentions, and we think that whenever the issue depends upon the character of the plaintiff’s own conduct, it being the immediate cause of the injury, and there is evidence to warrant the finding, the jury should be left free to determine the essential fact on which the defendant’s liability depends. This was not done in the present case, but an inappropriate rule applied, to the predjudice of the defendant, which entitles it to a trial before another jury.
We purposely refrain from expressing an opinion upon the other points, inasmuch as the error pointed out is decisive of the appeal.
The verdict must be set aside and a venire de novo awarded, and it is so ordered. Let this be certified.