HoldeN, J.,
delivered the opinion of the court.
This is a suit by Mrs. Myrtle Hamel, appellant, against the appellee, Southern Railway Company, to recover damages for the death of her husband, James B. Hamel, alleged to have resulted from injuries inflicted by the running of the cars of appellee railroad; and from a jury verdict and judgment in favor of the railroad company she appeals here. The case before us now is an action to recover damages only for the death of Mr. Hamel; a judgment for the injuries inflicted up to the date of his death having been obtained, and settled, in a suit filed by the appellant against the appellee prior to the filing of the [355]*355case before us now. Therefore the only questions in the •instant case are whether the deceased, Hamel died from the injuries inflicted by the appellee railroad or from some other cause, or whether such injuries hastened his death or contributed directly to it. These were the issues before the jury in the court below, and a verdict was returned in favor of the defendant railroad.
The appellant assigns several grounds of error but we shall notice and discuss only three of these contentions, viz.: First. That the court erred in allowing Dr. S. T. Rucker, a witness for the defendant railroad, who was the attending physician of the deceased, to be introduced by the defendant and testify, over the objection of the plaintiff below, as to the condition of deceased and the cause of his death. Second. That the court erred in granting to the defendant below instruction No. 4, which reads as follows:
“The court instructs the jury that the law is that before the plaintiff can recover against the defendant in this case, she must prove by a preponderance of the evidence to ..your satisfaction: First, that J. B. Hamel was injured by the negligence of the defendant; and, second, that the death of the said J. B. Hamel was caused by said injury, and unless she has so proven, then your verdict must be for the defendant.’ ’
Third. That the court erred in granting to the defendant instruction No. 5, which reads as follows:
“The court instructs the jury that the burden is on the plaintiff to prove, by a preponderance of the evidence, to your satisfaction, that J. B. Hamel’s death was caused by the injuries alleged to have been sustained by him at the time and place named in the declaration, and if from all of the evidence in this case you are unable to say what caused his death, then you must find for the defendant, and this is true even though you may believe from the evidence that the defendant is liable for such injury. ”
[356]*356We will discuss the questions in the order given above.
It appears that' the plaintiff below introduced her testimony, and proved her case under our prima-facie statute (section 1986, Code of 1906), and rested. She did not introduce any physician to testify in reference to the injuries or death of her husband. After the plaintiff rested, the defendant railroad introduced Dr. S. T. Eucker, a witness in its behalf, who was the attending physician of the deceased Hamel, who was a patient under his, Dr. Eucker’s, charge at the time and prior to his death. Strenuous objection was promptly made by the appellant to the introduction of this testimony, which objection was overruled by the court, and Dr. Eucker was permitted to testify fully as to the condition, injuries, and cause of the death, of the deceased; his testimony being to the effect that Mr. Hamel’s death was not caused or hastened by the injuries inflicted by the railroad, hut that he died from pellagra. The sole issue in the case being whether or not the injuries inflicted by the railroad had caused or contributed to the death, this testimony of Dr. Eucker was vital and very damaging to the plaintiff’s case. Section 3695, Code of 1906, provides:
“All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient. ’ ’
In view of the plain,meaning and purpose of the above statute it was palpable error to permit this doctor to testify to these matters which are privileged communiqa-tions, a disclosure of which cannot be required in any legal proceeding except at the instance of the patient..
But counsel for the appellee here contends that the privileged communication under the statute was waived by the appellant, because the appellant introduced Dr. Kent, a physician of deceased, as a witness in rebuttal. This con[357]*357tention is unsound, for the reason that the introduction of the testimony by the appellant in rebuttal could, in no way, cure the error and wrong that had been committed in the first instance by the appellee railroad in introducing the attending physician of the deceased at a time when the appellant had introduced no attending physician’s testimony whatever as to the cause of death, and had not, therefore, in any way opened the door to inquiry as to the injury and cause of death of deceased by the testimony of any attending physician.
We do not pass upon the question now as to whether the plaintiff below must have waived her right, under the statute, if she had, in proving her case, introduced a physician who had attended the patient, and he had testified on the particular subject of the cause of the death of the deceased, and thereby opened the door to a full inquiry on that particular subject which she had thus put in issue in the case by the testimony of any physician in charge of the patient.
As to the second contention of appellant, we think that instruction No. 4, granted to the defendant below, was error. The error appears in this: That it was not incumbent upon the appellant to prove by a preponderance of the evidence that Mr. Hamel was injured by the negligence of the appellee railroad, because the appellant had made out her case under our prima-facie negligence statute (section 1985, Code of 1906), and, the railroad having failed to explain the injury and exculpate itself, the proof of the injury inflicted by the running of the appellee’s locomotives and cars was all that was required of the appellant, and it was not necessary that the appellant prove negligence on the part of the railroad, but the proof made under the statute was sufficient. When proof of injury is made by the plaintiff under the prima-facie statute in any ease, the plaintiff is never required to show negligence of the defendant until, the defendant has explained the injury by testimony putting it beyond and without the [358]*358statute, in wMcli event both parties would then stand upon the same legal footing, and the plaintiff would have the burden of showing negligence on the part of the defendant before a recovery could be had. Railroad v. Thornhill, 106 Miss. 387, 63 So. 674; Railroad v. Hamilton, 62 Miss. 503; Railroad v. Doggett, 67 Miss. 250, 7 So. 278; Railroad v. Brooks, 85 Miss. 269, 38 So. 40; Railroad v. Landrum, 89 Miss. 399, 42 So. 675; Fuller v. Railroad, 100 Miss. 705, 56 So. 783; Jefferson v. Railway Co., 105 Miss. 571, 62 So. 643; Railroad v. Carney, 109 Miss. 233, 68 So. 166.
As to the third ground of error, which was the granting of instruction No.
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HoldeN, J.,
delivered the opinion of the court.
This is a suit by Mrs. Myrtle Hamel, appellant, against the appellee, Southern Railway Company, to recover damages for the death of her husband, James B. Hamel, alleged to have resulted from injuries inflicted by the running of the cars of appellee railroad; and from a jury verdict and judgment in favor of the railroad company she appeals here. The case before us now is an action to recover damages only for the death of Mr. Hamel; a judgment for the injuries inflicted up to the date of his death having been obtained, and settled, in a suit filed by the appellant against the appellee prior to the filing of the [355]*355case before us now. Therefore the only questions in the •instant case are whether the deceased, Hamel died from the injuries inflicted by the appellee railroad or from some other cause, or whether such injuries hastened his death or contributed directly to it. These were the issues before the jury in the court below, and a verdict was returned in favor of the defendant railroad.
The appellant assigns several grounds of error but we shall notice and discuss only three of these contentions, viz.: First. That the court erred in allowing Dr. S. T. Rucker, a witness for the defendant railroad, who was the attending physician of the deceased, to be introduced by the defendant and testify, over the objection of the plaintiff below, as to the condition of deceased and the cause of his death. Second. That the court erred in granting to the defendant below instruction No. 4, which reads as follows:
“The court instructs the jury that the law is that before the plaintiff can recover against the defendant in this case, she must prove by a preponderance of the evidence to ..your satisfaction: First, that J. B. Hamel was injured by the negligence of the defendant; and, second, that the death of the said J. B. Hamel was caused by said injury, and unless she has so proven, then your verdict must be for the defendant.’ ’
Third. That the court erred in granting to the defendant instruction No. 5, which reads as follows:
“The court instructs the jury that the burden is on the plaintiff to prove, by a preponderance of the evidence, to your satisfaction, that J. B. Hamel’s death was caused by the injuries alleged to have been sustained by him at the time and place named in the declaration, and if from all of the evidence in this case you are unable to say what caused his death, then you must find for the defendant, and this is true even though you may believe from the evidence that the defendant is liable for such injury. ”
[356]*356We will discuss the questions in the order given above.
It appears that' the plaintiff below introduced her testimony, and proved her case under our prima-facie statute (section 1986, Code of 1906), and rested. She did not introduce any physician to testify in reference to the injuries or death of her husband. After the plaintiff rested, the defendant railroad introduced Dr. S. T. Eucker, a witness in its behalf, who was the attending physician of the deceased Hamel, who was a patient under his, Dr. Eucker’s, charge at the time and prior to his death. Strenuous objection was promptly made by the appellant to the introduction of this testimony, which objection was overruled by the court, and Dr. Eucker was permitted to testify fully as to the condition, injuries, and cause of the death, of the deceased; his testimony being to the effect that Mr. Hamel’s death was not caused or hastened by the injuries inflicted by the railroad, hut that he died from pellagra. The sole issue in the case being whether or not the injuries inflicted by the railroad had caused or contributed to the death, this testimony of Dr. Eucker was vital and very damaging to the plaintiff’s case. Section 3695, Code of 1906, provides:
“All communications made to a physician or surgeon by a patient under his charge or by one seeking professional advice, are hereby declared to be privileged, and such physician or surgeon shall not be required to disclose the same in any legal proceeding, except at the instance of the patient. ’ ’
In view of the plain,meaning and purpose of the above statute it was palpable error to permit this doctor to testify to these matters which are privileged communiqa-tions, a disclosure of which cannot be required in any legal proceeding except at the instance of the patient..
But counsel for the appellee here contends that the privileged communication under the statute was waived by the appellant, because the appellant introduced Dr. Kent, a physician of deceased, as a witness in rebuttal. This con[357]*357tention is unsound, for the reason that the introduction of the testimony by the appellant in rebuttal could, in no way, cure the error and wrong that had been committed in the first instance by the appellee railroad in introducing the attending physician of the deceased at a time when the appellant had introduced no attending physician’s testimony whatever as to the cause of death, and had not, therefore, in any way opened the door to inquiry as to the injury and cause of death of deceased by the testimony of any attending physician.
We do not pass upon the question now as to whether the plaintiff below must have waived her right, under the statute, if she had, in proving her case, introduced a physician who had attended the patient, and he had testified on the particular subject of the cause of the death of the deceased, and thereby opened the door to a full inquiry on that particular subject which she had thus put in issue in the case by the testimony of any physician in charge of the patient.
As to the second contention of appellant, we think that instruction No. 4, granted to the defendant below, was error. The error appears in this: That it was not incumbent upon the appellant to prove by a preponderance of the evidence that Mr. Hamel was injured by the negligence of the appellee railroad, because the appellant had made out her case under our prima-facie negligence statute (section 1985, Code of 1906), and, the railroad having failed to explain the injury and exculpate itself, the proof of the injury inflicted by the running of the appellee’s locomotives and cars was all that was required of the appellant, and it was not necessary that the appellant prove negligence on the part of the railroad, but the proof made under the statute was sufficient. When proof of injury is made by the plaintiff under the prima-facie statute in any ease, the plaintiff is never required to show negligence of the defendant until, the defendant has explained the injury by testimony putting it beyond and without the [358]*358statute, in wMcli event both parties would then stand upon the same legal footing, and the plaintiff would have the burden of showing negligence on the part of the defendant before a recovery could be had. Railroad v. Thornhill, 106 Miss. 387, 63 So. 674; Railroad v. Hamilton, 62 Miss. 503; Railroad v. Doggett, 67 Miss. 250, 7 So. 278; Railroad v. Brooks, 85 Miss. 269, 38 So. 40; Railroad v. Landrum, 89 Miss. 399, 42 So. 675; Fuller v. Railroad, 100 Miss. 705, 56 So. 783; Jefferson v. Railway Co., 105 Miss. 571, 62 So. 643; Railroad v. Carney, 109 Miss. 233, 68 So. 166.
As to the third ground of error, which was the granting of instruction No. 5 to the appellee, and the refusal of the court to grant any instruction to the appellant stating the true rule, we think was error. Instruction No. 5 is erroneous because it instructs the jury, in effect, that no recovery by the' plaintiff could be had unless the injury inflicted by the railroad was the sole cause of the death, and at the same time denying to the plaintiff the benefit of the true rule, as announced by instructions requested by plaintiff, that the plaintiff should recover if the injuries inflicted aggravated the condition of the deceased and hastened his death, or contributed directly to his death. We think the refusal of the lower court to grant the instructions requested by plaintiff announcing this rule, and the granting to defendant the instruction No 5, was substantial error. R. C. L., vol. 8, p. 438, par. 11, 13 Cyc. p. 31; Louisville, etc., R. Co. v. Jones, 83 Ala. 376, 3 So. 904; Tidwell v. State, 70 Ala. 33; Lapeine v. Morgan’s etc., Co., 40 La. Ann. 661, 4 So. 875, 1 L. R. A. 378.
The judgment of the lower- court is reversed, and the case remanded.
Reversed and remanded.