LyoN, J.
In tbe record before us we find no affirmative evidence from which tbe jury could properly find that the plaintiff was guilty of any negligence "which contributed proximately to cause the injury of which he complains. The jury were instructed, however, that the burden was upon the plaintiff to prove that he was in the exercise of due care, when injured. Inasmuch as the plaintiff failed to make any such proof, if the instruction is correct, the jury should-have'been directed to return a verdict for the. defendant. But the learned circuit judge further instructed the jury that if the circumstances under which the injury was received, as proved, show nothing in the acts or omissions of the plaintiff to which the injury might be attributed, in whole or in part, “ the inference of due care may be drawn from the absence of all appearance of fault.” That is to say, the jury were first told that the burden was upon the plaintiff to prove that he was in the exercise of due care when injured; and then, that they were at [108]*108liberty to infer from bis entire failure to introduce any evidence on tbe subject, that lie did exercise due care. This involves the absurdity of proving a fact by failing to prove it. Such an onus probanM is incomprehensible to us. See Mil. & Ch. R. R. Co. v. Hunter, 11 Wis., 160.
It should be stated, however, that the instructions are fully sustained by the late case of Ryerson v. Abington, 102 Mass., 626, and by other decisions of that court. But we cannot adopt a decision which involves so manifest an absurdity, though made (as that was) by one of the ablest courts in the country. The common sense view of the subject is, that if the burden of proving his own due care to avoid the injury is upon the plaintiff, he must pijove such care, either by direct evidence, or by showing res gestae which exclude fault on his part, or he must fail in the1 action. But if the burden is upon the defendant to prove that the plaintiff was guilty of contributory negligence, and there is nothing in the evidence tending to show such negligence, the court' should hold, as a proposition of law, that the plaintiff was free from fault, and it is error to submit the question to the jury.
Sufficient has been said to "'show that the important question in this case is, Was the onus upon the plaintiff to prove that, when injured, he was in the exercise of proper care to avoid the injury, or was it upon the defendant to prove that the plaintiff was guilty of some negligence which contributed proximately to the injury of which he complains? If the onus was upon the plaintiff, he failed to meet its requirements, and the verdict and judgment were properly for the defendant; but if upon the defendant, the defense of contributory negligence was not established, and the action could not properly be(defeated on that ground. But the action may have been defeated on that ground alone. It cannot be determined from the record that it was not. Hence, if the court erred in the instructions — if the onus probandi was upon [109]*109tbe defendant, tbe error is material, and tbe judgment must be reversed.
In Chamberlain, v. R. R. Co., 7 Wis., 425, and Dressler v. Davis, id., 527, tbis court beld that in an action for injuries caused by negligence tbe burden is upon tbe plaintiff to show bimself free from contributory fault. Tbis rule was vigorously assailed, as unsound in principle, by tbe late Mr. Justice PaiNe, in R. R. Co. v. Hunter, 11 Wis., 160; but it does not seem to bave been overturned. Yet in Achtenhagen v. Watertown, 18 id., 331, Dixonr, C. J., seems to concede that tbe rule no longer prevails in tbis state. Since B. B. Co. v. Hunter, we are not aware tbat tbe subject bas been discussed or considered bere. Tbe question is not one to which tbe rule stare decisis is applicable; and in view of tbe difference of opinion which members of tbis court bave entertained in regard to it at different times, we feel at liberty to consider and determine tbe question on tbe merits, untrammeled by tbe earlier decisions, or by tbe later opinions of tbe court or any justice thereof, in opposition thereto.
It has been held in Massachusetts and several other states,, that in actions of tbis kind tbe plaintiff must prove that be was free from contributory fault, or fail in bis action. These decisions go upon tbe ground tbat there can be no recovery unless two conditions concur, to wit, negligence of tbe defendant and freedom of tbe plaintiff from contributory fault; and tbat it is incumbent on tbe plaintiff to show tbe existence of both conditions.
Tbe same proposition may be stated in another form. Tbe defendant is only liable to respond in damages for an injury caused by bis negligence. But if tbe negligence of tbe plaintiff concurred with tbat of tbe defendant to produce tbe injury, it cannot correctly be said tbat tbe same was caused by tbe negligence of tbe defendant. Tbe meaning of tbe rule is, tbat to render tbe defendant liable, tbe injury must be tbe re-[110]*110suit of his negligence alone. Hence, to establish a cause of action, the plaintiff must show that the negligence of the defendant was the sole proximate cause of the injury; and to do this he must necessarily prove himself free from contributory fault.
Many of the cases which hold .the above doctrine will be found cited in the notes to §§ 33 and 34 of Shearman & Red-field on Negligence, and in the brief of counsel for the defendant.
On the other hand, the contrary doctrine is maintained in many cases, some of which are cited in the brief of counsel, for the plaintiff and in the above notes in Shearman & Redfield. These cases hold that if the negligence of the plaintiff concurred in producing the injury complained of, that is purely matter of defense, and hence the burden of proving it is upon the defendant. This is the view taken by Judge Duer in Johnson v. The Hudson River R. R. Co., 5 Duer, 21; and that able judge rested his opinion mainly on two grounds: 1. lie held that in the absence of proof there is no presumption that the person injured was guilty of negligence which contributed to the injury, any more than there is a like presumption that he whose act or omission caused the injury was guilty of negligence. And inasmuch as the- plaintiff must prove affirmatively that the act or omission of the defendant which resulted in the injury, was negligent, before he can recover, so in like manner the defendant must prove affirmatively that the act or omission of the plaintiff contributed proximately to the injury, in order to defeat the action on that ground. 2. He further held that no averment is required in the complaint in such an action that the plaintiff, when injured, was in the exercise of proper care and caution to avoid the injury; and, from the elementary rule that every fact is necessary to be averred in the complaint which the plaintiff is bound to prove in order to maintain his action, he draws the conclusion that the plaintiff in such an action is not bound to [111]*111prove in tbe first instance Ms own freedom from contributory fault; in other word's, that the onus prolandi is not upon him to disprove his own negligence, but is upon the defendant to prove such negligence.
In the elementary treatise above referred to (Shearman & Eed-field on Negligence), the authors agree with Judge Dube, and, discussing the rule of the cases which hold the omis
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LyoN, J.
In tbe record before us we find no affirmative evidence from which tbe jury could properly find that the plaintiff was guilty of any negligence "which contributed proximately to cause the injury of which he complains. The jury were instructed, however, that the burden was upon the plaintiff to prove that he was in the exercise of due care, when injured. Inasmuch as the plaintiff failed to make any such proof, if the instruction is correct, the jury should-have'been directed to return a verdict for the. defendant. But the learned circuit judge further instructed the jury that if the circumstances under which the injury was received, as proved, show nothing in the acts or omissions of the plaintiff to which the injury might be attributed, in whole or in part, “ the inference of due care may be drawn from the absence of all appearance of fault.” That is to say, the jury were first told that the burden was upon the plaintiff to prove that he was in the exercise of due care when injured; and then, that they were at [108]*108liberty to infer from bis entire failure to introduce any evidence on tbe subject, that lie did exercise due care. This involves the absurdity of proving a fact by failing to prove it. Such an onus probanM is incomprehensible to us. See Mil. & Ch. R. R. Co. v. Hunter, 11 Wis., 160.
It should be stated, however, that the instructions are fully sustained by the late case of Ryerson v. Abington, 102 Mass., 626, and by other decisions of that court. But we cannot adopt a decision which involves so manifest an absurdity, though made (as that was) by one of the ablest courts in the country. The common sense view of the subject is, that if the burden of proving his own due care to avoid the injury is upon the plaintiff, he must pijove such care, either by direct evidence, or by showing res gestae which exclude fault on his part, or he must fail in the1 action. But if the burden is upon the defendant to prove that the plaintiff was guilty of contributory negligence, and there is nothing in the evidence tending to show such negligence, the court' should hold, as a proposition of law, that the plaintiff was free from fault, and it is error to submit the question to the jury.
Sufficient has been said to "'show that the important question in this case is, Was the onus upon the plaintiff to prove that, when injured, he was in the exercise of proper care to avoid the injury, or was it upon the defendant to prove that the plaintiff was guilty of some negligence which contributed proximately to the injury of which he complains? If the onus was upon the plaintiff, he failed to meet its requirements, and the verdict and judgment were properly for the defendant; but if upon the defendant, the defense of contributory negligence was not established, and the action could not properly be(defeated on that ground. But the action may have been defeated on that ground alone. It cannot be determined from the record that it was not. Hence, if the court erred in the instructions — if the onus probandi was upon [109]*109tbe defendant, tbe error is material, and tbe judgment must be reversed.
In Chamberlain, v. R. R. Co., 7 Wis., 425, and Dressler v. Davis, id., 527, tbis court beld that in an action for injuries caused by negligence tbe burden is upon tbe plaintiff to show bimself free from contributory fault. Tbis rule was vigorously assailed, as unsound in principle, by tbe late Mr. Justice PaiNe, in R. R. Co. v. Hunter, 11 Wis., 160; but it does not seem to bave been overturned. Yet in Achtenhagen v. Watertown, 18 id., 331, Dixonr, C. J., seems to concede that tbe rule no longer prevails in tbis state. Since B. B. Co. v. Hunter, we are not aware tbat tbe subject bas been discussed or considered bere. Tbe question is not one to which tbe rule stare decisis is applicable; and in view of tbe difference of opinion which members of tbis court bave entertained in regard to it at different times, we feel at liberty to consider and determine tbe question on tbe merits, untrammeled by tbe earlier decisions, or by tbe later opinions of tbe court or any justice thereof, in opposition thereto.
It has been held in Massachusetts and several other states,, that in actions of tbis kind tbe plaintiff must prove that be was free from contributory fault, or fail in bis action. These decisions go upon tbe ground tbat there can be no recovery unless two conditions concur, to wit, negligence of tbe defendant and freedom of tbe plaintiff from contributory fault; and tbat it is incumbent on tbe plaintiff to show tbe existence of both conditions.
Tbe same proposition may be stated in another form. Tbe defendant is only liable to respond in damages for an injury caused by bis negligence. But if tbe negligence of tbe plaintiff concurred with tbat of tbe defendant to produce tbe injury, it cannot correctly be said tbat tbe same was caused by tbe negligence of tbe defendant. Tbe meaning of tbe rule is, tbat to render tbe defendant liable, tbe injury must be tbe re-[110]*110suit of his negligence alone. Hence, to establish a cause of action, the plaintiff must show that the negligence of the defendant was the sole proximate cause of the injury; and to do this he must necessarily prove himself free from contributory fault.
Many of the cases which hold .the above doctrine will be found cited in the notes to §§ 33 and 34 of Shearman & Red-field on Negligence, and in the brief of counsel for the defendant.
On the other hand, the contrary doctrine is maintained in many cases, some of which are cited in the brief of counsel, for the plaintiff and in the above notes in Shearman & Redfield. These cases hold that if the negligence of the plaintiff concurred in producing the injury complained of, that is purely matter of defense, and hence the burden of proving it is upon the defendant. This is the view taken by Judge Duer in Johnson v. The Hudson River R. R. Co., 5 Duer, 21; and that able judge rested his opinion mainly on two grounds: 1. lie held that in the absence of proof there is no presumption that the person injured was guilty of negligence which contributed to the injury, any more than there is a like presumption that he whose act or omission caused the injury was guilty of negligence. And inasmuch as the- plaintiff must prove affirmatively that the act or omission of the defendant which resulted in the injury, was negligent, before he can recover, so in like manner the defendant must prove affirmatively that the act or omission of the plaintiff contributed proximately to the injury, in order to defeat the action on that ground. 2. He further held that no averment is required in the complaint in such an action that the plaintiff, when injured, was in the exercise of proper care and caution to avoid the injury; and, from the elementary rule that every fact is necessary to be averred in the complaint which the plaintiff is bound to prove in order to maintain his action, he draws the conclusion that the plaintiff in such an action is not bound to [111]*111prove in tbe first instance Ms own freedom from contributory fault; in other word's, that the onus prolandi is not upon him to disprove his own negligence, but is upon the defendant to prove such negligence.
In the elementary treatise above referred to (Shearman & Eed-field on Negligence), the authors agree with Judge Dube, and, discussing the rule of the cases which hold the omis to be upon the plaintiff to prove his freedom from contributory fault, they say: “If this broad rule is adopted, even if we distinguish such defenses as payment, release, satisfaction, etc., as relating to facts subsequent to the act complained of, we cannot see upon what ground the plaintiff is to be excused from proving that he is not an alien enemy, if war exists, or that he was not in a state prison, or that the defendant was not acting under the authority of any statute in what he did, or, in cases where the defendant would not be responsible if he was a mere agent, that he was not acting as an agent. And at any rate, what possible ground of distinction can there be between the rule forbidding a plaintiff to recover when his negligence has contributed to the injury, and that which prevents a recovery for a fraud or trespass when the parties are i/n pari delicto? Yet we are not aware of any case in which it has been held that the plaintiff in such actions must assume the burden of showing himself free from fault.”
It seems to us that the reasons in favor of the rule which casts the burden of proof in such cases upon the defendant, are the stronger and better reasons; and that such rule rests upon sound legal principles, and ought to prevail in this state. "We therefore hold that, in the absence of any evidence tending to show that the plaintiff was chargeable with negligence contributing to the injury of -which he complains, the presumption of law is that he was fo’ee from such negligence, and the burden was upon the defendant to prove such contributory fault, if the same was relied upon as a defense.
The rule here adopted does not apply to a case in which the [112]*112proofs oil behalf of the plaintiff show, or tend to show, his 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 to the jury, to be determined, like any other question of fact, upon a preponderance of the evidence.
Inasmuch as' the instructions were predicated upon an erroneous rule of law, the judgment of the circuit court must be reversed. We do not deem it necessary to determine the other questions argued at the bar.
By the Gou/rt. — Judgment reversed, and cause remanded for a new trial.