Deembr, O. J.
This is the third time this case has been before ns. The first opinion will be found in 91 Iowa, 179,. the second in 71 N. W. Rep. 332. A re-hearing was granted on the second appeal, and the case has again received most careful consideration. The facts are fully set.out in the first opinion, and heed" not be repeated, except in so far as they may be necessary to a full understanding of the points decided upon this appeal.
1 [88]*882 [89]*89■3 4 [90]*905 [87]*87The court instructed that under the issues the burden was on the plaintiff to establish the alleged negligence, the injury to the estate and consequent damage.; and on defendant “to establish by a fair preponderance of. the evidence the allegations which'it makes against. plaintiff's intestate, and which it charges contributed to his injury, as well as to establish any waiver claimed by it.” This was the only instruction relating to the burden of proof which was given. The reply filed by plaintiff admitted that her intestate knew of the cattle-guard, and that it was dangerous, and with such knowledge continued in the employment of the defendant. But, in avoidance, plaintiff pleaded protest and promise of repair. It is evident that the court was in error in placing the burden on-defendant of- proving a matter which was admitted in the-pleadings. Appellee contends, however, that waiver consists-of four ingredients, viz.: knowledge of danger, continuance in employment, absence of protest, and absence of promise to-repair; and that the burden was on defendant to prove each and all of these propositions. The case of Worden v. Railway Co., 72 Iowa, 201, is cited in support of this position. In that case the defendant alleged that deceased, long prior to-the injury, had full knowledge of the condition of the track,, and continued in the service without objection, and without, promise of change. The question here presented does-not seem to have been- argued in that case, for the reason, no doubt, that defendant pleaded absence of protest and promise-to repair. It is true, we said “that the instruction, standing [88]*88by itself, does not express tbe law, because it omits tlie element of waiver, which consists in remaining, after knowledge, without objection, and without promise of amendment.” This is a correct statement of the law, but it does not support the appellee’s contention in this case. No reference is made to the burden of proof, and no attempt was made to determine where it should be placed. The question was determined adversely to appellee in the case of Coates v. Railway Co., 62 Iowa, 486. In that case it is said, after referring to the case of Wells v. Railroad Co., 56 Iowa, 520, which requires the defendant to prove that the person injured had knowledge of the danger: “We think that, when the defendant has shown that fact,.it may well rest upon it as a defense, and that, in the absence of some excuse from the plaintiff for exposing himself to dangers known to him, there can be no recovery. It is a general rule (subject, of course, to some exceptions) that a party to an action is not required to establish the negative of a proposition. When the defendant shows that the plaintiff knew of the dangerous condition of the road or machinery which he aided to operate, it is then incumbent on the plaintiff to show that he was in some manner justifiable in exposing himself to the danger. The fact that such proof cannot be made in some cases, where the injury results in death, is no reason why the rule that the party who holds the affirmative of an issue is required to assume the burden of proof should not be enforced. If the burden had been held to rest on the defendant to prove the negative, it would have been required to introduce as witnesses all of its •officers and employes to whom such notice might be properly given, and prove by them that no complaint was made.” This is a correct statement of the rule as we understand it, and is a complete answer to appellee’s argument. In the argument upon re-hearing, appellee concedes the error in the instruction, but argues that it was without prejudice, for the reason that in another instruction, to-wit, the eighth, the court told the jury that plaintiff conceded that [89]*89deceased knew of tbe location and construction of the cattle .•guard when he entered defendant’s service as a switchman. It is true, such a statement is found in the eight paragraph of the charge, but it has no reference to the question as to the "burden of proof. It relates simply to the matter of waiver, and is a correct statement of the law upon that subject. But how are we to know but that the jury understood the word “waiver,” as used in instruction 4, as appellee’s counsel understood it? As said in the Worclen Case, “wniver consists in remaining, after knowledge, without objection, and without promise of amendment.” So counsel understood it, and the jury, no doubt, had the same idea. If they did, then the fourth instruction cast upon defendant the burden of proving absence of protest, and promise of repair. Again, it is .suggested that, as defendant asked no instruction with reference to the burden of proof, it is not in position to complain. It is true, no instruction was asked; but the court, in the absence of a request, undertook to •state where the burden was as to each and every issue presented by the pleadings; and the rule is wnll settled that, when the court attempts to so instruct, it must do so correctly, whether request be made or not. State v. Pennell, 56 Iowa, 29. As the reply admitted knowledge of the defect, and continuance in the employment, plaintiff was not entitled to recover without proving affirmatively that deceased protested against the defect, and was promised that it should be repaired. No such instruction was given. On the contrary, the court said that, under the issues as tendered, the plaintiff need only prove the alleged negligence, the injury to the estate she ¡represented, and the consequent damage. Surely, this was error of the most prejudicial kind. Moreover, as the court instructed that the burden was upon the defendant to establish the allegations which it made against the plaintiff’s intestate, as well as to establish any waiver claimed by it, and at the same time instructed that plaintiff had admitted that her intestate had knowledge of the [90]*90defect and the dangers incident thereto, it is evident that something more was intended by the use of the word “waiver” than mere knowledge and continuance in employment. Counsel for appellee certainly had this idea upon the original submission, and it is strange if the jury did not reach the same conclusion. When error appears, prejudice will be presumed, unless the contrary affirmatively appears. With this rule in mind, it seems quite clear that there was not only error, but that the error was prejudicial. But it is said the instructions, taken as a whole, are not erroneous. This argument is based upon the thought that the jury understood the term “waiver” to mean no more than knowledge of the defect, and continuance in the employment, and further proceeds upon the idea that, as the eighth instruction states that these matters were admitted, there was no prejudice. The fault in this argument lies in the fact that, if the instructions are so construed, they are in direct conflict; one saying that the burden was upon defendant to prove a certain state of facts; and others, that this same state of facts was admitted by the plaintiff.
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Deembr, O. J.
This is the third time this case has been before ns. The first opinion will be found in 91 Iowa, 179,. the second in 71 N. W. Rep. 332. A re-hearing was granted on the second appeal, and the case has again received most careful consideration. The facts are fully set.out in the first opinion, and heed" not be repeated, except in so far as they may be necessary to a full understanding of the points decided upon this appeal.
1 [88]*882 [89]*89■3 4 [90]*905 [87]*87The court instructed that under the issues the burden was on the plaintiff to establish the alleged negligence, the injury to the estate and consequent damage.; and on defendant “to establish by a fair preponderance of. the evidence the allegations which'it makes against. plaintiff's intestate, and which it charges contributed to his injury, as well as to establish any waiver claimed by it.” This was the only instruction relating to the burden of proof which was given. The reply filed by plaintiff admitted that her intestate knew of the cattle-guard, and that it was dangerous, and with such knowledge continued in the employment of the defendant. But, in avoidance, plaintiff pleaded protest and promise of repair. It is evident that the court was in error in placing the burden on-defendant of- proving a matter which was admitted in the-pleadings. Appellee contends, however, that waiver consists-of four ingredients, viz.: knowledge of danger, continuance in employment, absence of protest, and absence of promise to-repair; and that the burden was on defendant to prove each and all of these propositions. The case of Worden v. Railway Co., 72 Iowa, 201, is cited in support of this position. In that case the defendant alleged that deceased, long prior to-the injury, had full knowledge of the condition of the track,, and continued in the service without objection, and without, promise of change. The question here presented does-not seem to have been- argued in that case, for the reason, no doubt, that defendant pleaded absence of protest and promise-to repair. It is true, we said “that the instruction, standing [88]*88by itself, does not express tbe law, because it omits tlie element of waiver, which consists in remaining, after knowledge, without objection, and without promise of amendment.” This is a correct statement of the law, but it does not support the appellee’s contention in this case. No reference is made to the burden of proof, and no attempt was made to determine where it should be placed. The question was determined adversely to appellee in the case of Coates v. Railway Co., 62 Iowa, 486. In that case it is said, after referring to the case of Wells v. Railroad Co., 56 Iowa, 520, which requires the defendant to prove that the person injured had knowledge of the danger: “We think that, when the defendant has shown that fact,.it may well rest upon it as a defense, and that, in the absence of some excuse from the plaintiff for exposing himself to dangers known to him, there can be no recovery. It is a general rule (subject, of course, to some exceptions) that a party to an action is not required to establish the negative of a proposition. When the defendant shows that the plaintiff knew of the dangerous condition of the road or machinery which he aided to operate, it is then incumbent on the plaintiff to show that he was in some manner justifiable in exposing himself to the danger. The fact that such proof cannot be made in some cases, where the injury results in death, is no reason why the rule that the party who holds the affirmative of an issue is required to assume the burden of proof should not be enforced. If the burden had been held to rest on the defendant to prove the negative, it would have been required to introduce as witnesses all of its •officers and employes to whom such notice might be properly given, and prove by them that no complaint was made.” This is a correct statement of the rule as we understand it, and is a complete answer to appellee’s argument. In the argument upon re-hearing, appellee concedes the error in the instruction, but argues that it was without prejudice, for the reason that in another instruction, to-wit, the eighth, the court told the jury that plaintiff conceded that [89]*89deceased knew of tbe location and construction of the cattle .•guard when he entered defendant’s service as a switchman. It is true, such a statement is found in the eight paragraph of the charge, but it has no reference to the question as to the "burden of proof. It relates simply to the matter of waiver, and is a correct statement of the law upon that subject. But how are we to know but that the jury understood the word “waiver,” as used in instruction 4, as appellee’s counsel understood it? As said in the Worclen Case, “wniver consists in remaining, after knowledge, without objection, and without promise of amendment.” So counsel understood it, and the jury, no doubt, had the same idea. If they did, then the fourth instruction cast upon defendant the burden of proving absence of protest, and promise of repair. Again, it is .suggested that, as defendant asked no instruction with reference to the burden of proof, it is not in position to complain. It is true, no instruction was asked; but the court, in the absence of a request, undertook to •state where the burden was as to each and every issue presented by the pleadings; and the rule is wnll settled that, when the court attempts to so instruct, it must do so correctly, whether request be made or not. State v. Pennell, 56 Iowa, 29. As the reply admitted knowledge of the defect, and continuance in the employment, plaintiff was not entitled to recover without proving affirmatively that deceased protested against the defect, and was promised that it should be repaired. No such instruction was given. On the contrary, the court said that, under the issues as tendered, the plaintiff need only prove the alleged negligence, the injury to the estate she ¡represented, and the consequent damage. Surely, this was error of the most prejudicial kind. Moreover, as the court instructed that the burden was upon the defendant to establish the allegations which it made against the plaintiff’s intestate, as well as to establish any waiver claimed by it, and at the same time instructed that plaintiff had admitted that her intestate had knowledge of the [90]*90defect and the dangers incident thereto, it is evident that something more was intended by the use of the word “waiver” than mere knowledge and continuance in employment. Counsel for appellee certainly had this idea upon the original submission, and it is strange if the jury did not reach the same conclusion. When error appears, prejudice will be presumed, unless the contrary affirmatively appears. With this rule in mind, it seems quite clear that there was not only error, but that the error was prejudicial. But it is said the instructions, taken as a whole, are not erroneous. This argument is based upon the thought that the jury understood the term “waiver” to mean no more than knowledge of the defect, and continuance in the employment, and further proceeds upon the idea that, as the eighth instruction states that these matters were admitted, there was no prejudice. The fault in this argument lies in the fact that, if the instructions are so construed, they are in direct conflict; one saying that the burden was upon defendant to prove a certain state of facts; and others, that this same state of facts was admitted by the plaintiff. Contradictory and conflicting instructions are almost universally held to be erroneous, except in cases where the court can say there was no prejudice. See Carlin v. Railroad Co., 31 Iowa, 371; Potter v. Railroad Co., 46 Iowa, 399; Roby v. Appanoose County, 63 Iowa, 113; Blaul v. Tharp, 83 Iowa, 665. From any point of view, the instruction was erroneous, and, as the error does not affirmatively appear to have been without prejudice, the case must be reversed.
6 [93]*937 [90]*90II. .The negligence charged was the failure to construct and maintain a good, safe, and sufficient cattle guard. The defendant, as we have seen, pleaded contributory negligence. To this plaintiff responded by a general denial. The twelfth instruction given by the court was as follows: “If you should find from the evidence, and under the foregoing instructions, that the plaintiff’s intestate, H. P. Ford was negligent, still defendant could not escape liability if the act which caused the injury was done by defendant after [91]*91it discovered said Ford's negligence, if you find from the evidence that defendant could have avoided the injury in the exercise of reasonable care.” This instruction is challenged because it is said there was neither pleading nor proof to sustain it. A careful examination of the evidence leads us to the conclusion that there was sufficient to take the case to the jury, provided the question is properly made in the pleadings. It must be remembered that this is not a case where plaintiff must plead and prove freedom from contributory negligence. Such negligence is a defense which the defendant must plead and prove. See 91 Iowa, 179. When such an issue is tendered, plaintiff may rely upon the denial interposed by law, or he may file a written denial, or he may confess and avoid with or without a denial. McDermott v. Railway Co., 85 Iowa, 180; Stanbrough v. Daniels, 77 Iowa, 561; Day v. Insurance Co., 75 Iowa, 694; Schulte v. Colthurst, 94 Iowa, 418; Nichols v. Railway Co., 94 Iowa, 202. These rules are so elementary that they scarcély need the citation of authorities in their support. But appellee insists that, when contributory negligence is pleaded, the rule does not apply; and she relies upon the case of Crowley v. Railway Co., 65 Iowa, 658. That was a case where plaintiff was injured by a moving train negligently run with great force, and at a speed in violation of the ordinances of the City of Cedar Rapids. The plaintiff pleaded freedom from contributory negligence, which the defendant denied. In passing upon an instruction very similar to the one above set forth, the court said: “It is insisted that there is neither averment nor proof that the defendant could have prevented the injury after the discovery of plaintiff's negligence. We do not think such an allegation is necessary to be made in the petition. It is a phase of the rights and obligations of the parties, which arises upon the proof, rather than by pleading. We know of no rule of pleading which requires the plaintiff, in actions of this character, to confess negligence on his part, and avoid it by alleging that the defendant might have averted the injury by using-[92]*92proper care after the discovery of plaintiff’s peril.” As .applied to the facts in that case, this statement of the law is correct. In other words, recovery in such a case is not upon the ground that defendant has been guilty of a second and independent act of negligence, which must be charged as a separate and independent cause of action, but upon the ground that defendant’s recklessness and wantonness cannot be excused by plaintiff’s contributory negligence. In the case nt bar the negligence charged was the failure to maintain, a safe and sufficient cattle guard. All that plaintiff needed to do in the first instance was to plead and prove the neglect of the defendant, and the consequent injury. Defendant had the right to plead in defense that the injury was the result of the intestate’s contributory negligence, independent negligence, or .any other matter or thing which would defeat the plaintiff’s action. If plaintiff desired to avoid this defense by any new matter, as that the defendant negligently ran the train upon him after discovering his peril, he should have pleaded it. A plea of contributory negligence as a defense to an action under section 1288 of the Code of 1873 is or may be quite different from an allegation in a petition that plaintiff was free from contributory negligence. In the latter case it is “a phase of the rights and obligations of the parties which arises rather upon the proofs than by the pleadings,” and it is not necessary for plaintiff to do more than state, in a general way, freedom from contributory negligence. In the former, contributory negligence is purely a defense, which plaintiff should meet by proper averment and proof. Any other rule would require the defendant to meet an issue not tendered by the pleadings, and of which he could not possibly be advised. The case at bar is a good illustration of the rule, The cause of action which the defendant was called upon to meet was failure to construct and maintain a good, safe, and sufficient cattle guard. The defendant pleaded in defense that plaintiff’s intestate was guilty of contributory negligence in walking into the guard. Plaintiff denied this. It was practically [93]*93admitted at the trial, however, that the deceased did know of the defective guard, and that he walked into it with this knowledge. Whether or not his act in so doing was negligence, •was properly srrbmitted to the jury. But the court also gave the instruction now complained of, which related, not to the negligence charged in the petition, but to the negligence of the engineer and trainmen in charge -of the train after they knew of the peril deceased Avas in. Surely, this is not a phase-of the negligence charged. Under section 2665 of the Code-of 1873, which provides, in substance, that there may be a reply “where some matter is alleged in the ansAver to which plaintiff claims to haA^e a defense by reason of the existence of some fact AAhich avoids the matter alleged in the answer,” it Avas held in the case of Hay v. Frazier, 49 Iowa, 454, that, if plaintiff expects to introduce evidence of matter to avoid the facts pleaded in the answer, he should plead, such matter byAvay of reply. See, also, Zinck v. Insurance Co., 60 Iowa, 266; Kervick v. Mitchell, 68 Iowa, 273; Smith v. Griswold, 95 Iowa, 684; Willits v. Railway Co., 80 Iowa, 531; Bank v. Wright, 84 Iowa, 728. Appellee contends that the petition charges, negligence of defendant’s agents and seiwants after the peril of deceased Avas discovered. We need not set out the allegation relied upon. It is sufficient to say that, in our judgment, it. does not go to the extent claimed. True, it says that plaintiff’s intestate “dropped into the cattle guard , Avhile he was in such position that he could not see it, Avith the knowledge of the engineer, fireman, and Avatchman ■that he could not see it;” but this is far from charging actual negligence on the part of the defendant’s agents after they discovered the peril deceased Avas in. As there was no issue justifying the giving of the tAvelfth instruction, it must be held to be erroneous.
[94]*948 9 [93]*93III. In the fifth instruction the court said to the jury, in' effect, that if plaintiff had proved that the cattle guard was not good, sufficient, and safe, and that H. P. Pord sustained [94]*94injury and death, by reason thereof, then plaintiff was entitled to recover. Complaint is made of this unqualified statement of the law, because it overlooks the defenses of contributory negligence and waiver. The instruction should have had some such qualification. Hoben v. Railroad Co., 20 Iowa, 562. Under the issues as presented, instruction No. 4 asked by the defendant should have been given. It is as follows: “If you find from the evidence that the intestate, H. P. Ford, went between two of the moving cars, at a distance of about seventy-five feet east of the cattle guard in question, for the purpose of pulling a pin to uncouple said cars, and found that the pin which he intended to pull was sticking fast, so that he could not pull it out with his hand, and that he thereupon took the other coupling pin, and attempted to loosen the fastened pin by pounding it, and, while so engaged continued to walk between the moving cars, towards the said cattle guard; and if the jury further find that said-IT. P. Ford knew of the location of said cattle guard and might have avoided it by stepping from between said cars, but failed to do so, — then the said II. P. Ford was guilty of contributory negligence, and your verdict must be for the defendant.” As sustaining this view, see Pieart v. Railway Co., 82 Iowa, 148.
Some other matters are discussed by counsel, but, as they will not arise upon a re-trial, they will not be considered. For the errors pointed out, the judgment is reversed.