Ms. Justice Raney
delivered the opinion of the court:
I. The first error assigned is that the Circuit Judge erred in charging the jury as follows : “ If you believe from the evidence that it was apparent to the car driver that the plaintiff, when he entered the car, was in a crippled condition, having to use a cane or crutches to aid him in moving about, then it was the duty of the driver to use a greater degree of care than m a common case of an apparently well and sound passenger.” It is urged that there was no testimony “ going to show ” that it was apparent to the driver that the plaintiff, when he entered the car, was in such a condition as is assumed by the charge, and consequently none to base'this charge on, and that, therefore, it tended to mislead the jury.
It is contended by appellant and admitted by appellee in the briefs that the only testimony as to what transpired at the time of the accident is that given by the plaintiff, Chappell. “ It is also true,” says the brief of the appellee, “ that he does not speak directly as to his condition then. But he was not asked about it, as doubtless he would have been had he been examined on the stand instead of out of court while confined to his bed from the injuries caused by this accident, he having volunteered no testimony but confined his answers closely to the questions propounded.”
The injury is alleged to have been done in November, 1882, in the city of Jacksonville. The trial took place in May, 1884, the action having been commenced in July, 1883.
[181]*181In Cogswell vs. Oregon & Cal. R. R. Co., 6 Oregon, 417, it is said: “ And from the evidence in this case it appears that unless’ he was very deaf he would have heard the whistle of the engine, and been, warned of its approach in time to escape from the track, and we think that the evidence shows that his deafness was the proximate cause of the injury, and he being aware of this infirmity was guilty of gross negligence in being on the track, as he was walking laterally along it. It was a position of great danger to one who could not hear, and shows recklessness in the deceased. * * * We think that when a train is moving over a track in its ordinary speed, and a person is seen walking on the track apparently in possession of his ordinary faculties, the, engineer may justly suppose he will get off the track on sounding an alarm that the train is coming ; and under the evidence in this case, if the deceased had not been deaf we think his remaining on the track was such gross negligence that no recovery could be had.” In Central Railroad Co. vs. Feller, 84 Penn. St., where the plaintiff was deaf, it is said: “ He was somewhat deaf, but this was unknown to those on the train, even if they could have supposed that he would drive on past the watch house. But he, himself, being aware of his otvn defect, had a greater reason for caution in advancing.” In Evansville, &c., R. R. Co. vs. Hiatt, 17 Ind., 104, the court say: “ If it be said that the father was old and feeble, and unable to get out of the way of the train, then we say the carelessness, the rashness, of going upon the track in front of an approaching train was still greater, and involves those who were with the old gentleman, to the same extent, in the carelessness in not preventing him from going upon the track, or at all events keeping close to him with watchfulness while he was on it.” In French vs. Phila., W. & B. & R. Co., 39 Md., 574, it is held that where the employes [182]*182in charge of a railway train have given all the usual and proper signals to warn persons of their approach, they are not required to stop the train on discovering a person on the track, unless they have reason to believe that l)e is laboring under some disability, or that he does not hear or comprehend the signal. In the C., C. & C. R. Co. vs. Terry, 8 Ohio St., 570, it is laid down that where the party injured is an adult of ordinary mental capacity, but partially deaf, her infirmity not being known to the servants of the company, it will not‘increase their responsibilities as to care; nor will it excuse her from the full measure of care which prudent persons,partially deaf, but conscious of their infirmity, would ordinarily observe under similar circumstances.
As we understand the authorities, unless the representatives of the company know of or have reason to believe the existence of the disability, the company is held to no greater care than if such disability did not exist. Is there any testimony showing “that it wras apparent to the car driver that the plaintiff, when he entered the car, was in a crippled condition, having to use a cane or crutches to aid him in moving about ?” As admitted by counsel, the plaintiff' is the only witness who testifies as to the accident. In reply to a question propounded by his counsel, as to whether he saw the driver of the car when he hailed it to stop, and if the driver saw him after he got inside of the ear, and before starting the same, he says : “ Suppose I must have .seen driver. I beckoned and it stopped. I don’t know whether the driver saw me after I got inside of the car.” There is no testimony that the driver knew or had ever known of his condition or infirmity ; there is none that the driver saw him before he got on the car, or that seeing him - the circumstances or surroundings were such as to permit ;the driver to see the external evidence of his .infirmity, or [183]*183that a sight of him would have suggested the infirmity to a man of ordinary discernment and exercising due care. There is no testimony that the plaintiff used either a cane or crutches at the time, nor that if he used a cane that the manner of its use was such as to suggest to a person the existence of the infirmity. It is true that Dr. Johnson, in speaking of Chappell having returned from the North, and being improved by his trip, says he thought he walked with a cane. This cannot be considered as proof that he used a cane on the occasion in question.
Dr. Kenworthy’s testimony: that he was called to see Chappell five or six years ago, and that he was suffering from inability to use the lower portion of his body, and had difficulty in moving about the house; that he, the doctor, has repeatedly seen, him since, and that he afterwards became better, and at other times, was walking with crutches, and then riding in a cart; that at times he would get better and then worse,—considered either alon'e, or with his other testimony, does not show either that Chappell used crutches or a cane at the time in question, or that if he ever used a cane what his appearance when using it was, or that the infirmity was or must have been apparent to the car driver that day. Although Wheeler testifies that Chappell was on crutches part of the time, and sometimes walked with a stick, he says nothing as to the particular time in point, and it is not a basis for the charge, but subject to the same criticisms that we have given the plaintiff’s testimony. We do not think there is any testimony from which it could be inferred that it must have been apparent to the car driver that the plaintiff was in a crippled condition,' having to use a cane or crutches to aid him in moving about, or that consequently he was called upon t.o use a greater degree of care than in the case of an apparently well and sound passenger. We do not think the [184]*184■charge should have been given. R. R. Co. vs. Houstoun, 95 U. S., 697, 703. There is nothing in this case or presented by the testimony calling for the exercise of the ■“ greater degree of care ” contemplated by the charge.
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Ms. Justice Raney
delivered the opinion of the court:
I. The first error assigned is that the Circuit Judge erred in charging the jury as follows : “ If you believe from the evidence that it was apparent to the car driver that the plaintiff, when he entered the car, was in a crippled condition, having to use a cane or crutches to aid him in moving about, then it was the duty of the driver to use a greater degree of care than m a common case of an apparently well and sound passenger.” It is urged that there was no testimony “ going to show ” that it was apparent to the driver that the plaintiff, when he entered the car, was in such a condition as is assumed by the charge, and consequently none to base'this charge on, and that, therefore, it tended to mislead the jury.
It is contended by appellant and admitted by appellee in the briefs that the only testimony as to what transpired at the time of the accident is that given by the plaintiff, Chappell. “ It is also true,” says the brief of the appellee, “ that he does not speak directly as to his condition then. But he was not asked about it, as doubtless he would have been had he been examined on the stand instead of out of court while confined to his bed from the injuries caused by this accident, he having volunteered no testimony but confined his answers closely to the questions propounded.”
The injury is alleged to have been done in November, 1882, in the city of Jacksonville. The trial took place in May, 1884, the action having been commenced in July, 1883.
[181]*181In Cogswell vs. Oregon & Cal. R. R. Co., 6 Oregon, 417, it is said: “ And from the evidence in this case it appears that unless’ he was very deaf he would have heard the whistle of the engine, and been, warned of its approach in time to escape from the track, and we think that the evidence shows that his deafness was the proximate cause of the injury, and he being aware of this infirmity was guilty of gross negligence in being on the track, as he was walking laterally along it. It was a position of great danger to one who could not hear, and shows recklessness in the deceased. * * * We think that when a train is moving over a track in its ordinary speed, and a person is seen walking on the track apparently in possession of his ordinary faculties, the, engineer may justly suppose he will get off the track on sounding an alarm that the train is coming ; and under the evidence in this case, if the deceased had not been deaf we think his remaining on the track was such gross negligence that no recovery could be had.” In Central Railroad Co. vs. Feller, 84 Penn. St., where the plaintiff was deaf, it is said: “ He was somewhat deaf, but this was unknown to those on the train, even if they could have supposed that he would drive on past the watch house. But he, himself, being aware of his otvn defect, had a greater reason for caution in advancing.” In Evansville, &c., R. R. Co. vs. Hiatt, 17 Ind., 104, the court say: “ If it be said that the father was old and feeble, and unable to get out of the way of the train, then we say the carelessness, the rashness, of going upon the track in front of an approaching train was still greater, and involves those who were with the old gentleman, to the same extent, in the carelessness in not preventing him from going upon the track, or at all events keeping close to him with watchfulness while he was on it.” In French vs. Phila., W. & B. & R. Co., 39 Md., 574, it is held that where the employes [182]*182in charge of a railway train have given all the usual and proper signals to warn persons of their approach, they are not required to stop the train on discovering a person on the track, unless they have reason to believe that l)e is laboring under some disability, or that he does not hear or comprehend the signal. In the C., C. & C. R. Co. vs. Terry, 8 Ohio St., 570, it is laid down that where the party injured is an adult of ordinary mental capacity, but partially deaf, her infirmity not being known to the servants of the company, it will not‘increase their responsibilities as to care; nor will it excuse her from the full measure of care which prudent persons,partially deaf, but conscious of their infirmity, would ordinarily observe under similar circumstances.
As we understand the authorities, unless the representatives of the company know of or have reason to believe the existence of the disability, the company is held to no greater care than if such disability did not exist. Is there any testimony showing “that it wras apparent to the car driver that the plaintiff, when he entered the car, was in a crippled condition, having to use a cane or crutches to aid him in moving about ?” As admitted by counsel, the plaintiff' is the only witness who testifies as to the accident. In reply to a question propounded by his counsel, as to whether he saw the driver of the car when he hailed it to stop, and if the driver saw him after he got inside of the ear, and before starting the same, he says : “ Suppose I must have .seen driver. I beckoned and it stopped. I don’t know whether the driver saw me after I got inside of the car.” There is no testimony that the driver knew or had ever known of his condition or infirmity ; there is none that the driver saw him before he got on the car, or that seeing him - the circumstances or surroundings were such as to permit ;the driver to see the external evidence of his .infirmity, or [183]*183that a sight of him would have suggested the infirmity to a man of ordinary discernment and exercising due care. There is no testimony that the plaintiff used either a cane or crutches at the time, nor that if he used a cane that the manner of its use was such as to suggest to a person the existence of the infirmity. It is true that Dr. Johnson, in speaking of Chappell having returned from the North, and being improved by his trip, says he thought he walked with a cane. This cannot be considered as proof that he used a cane on the occasion in question.
Dr. Kenworthy’s testimony: that he was called to see Chappell five or six years ago, and that he was suffering from inability to use the lower portion of his body, and had difficulty in moving about the house; that he, the doctor, has repeatedly seen, him since, and that he afterwards became better, and at other times, was walking with crutches, and then riding in a cart; that at times he would get better and then worse,—considered either alon'e, or with his other testimony, does not show either that Chappell used crutches or a cane at the time in question, or that if he ever used a cane what his appearance when using it was, or that the infirmity was or must have been apparent to the car driver that day. Although Wheeler testifies that Chappell was on crutches part of the time, and sometimes walked with a stick, he says nothing as to the particular time in point, and it is not a basis for the charge, but subject to the same criticisms that we have given the plaintiff’s testimony. We do not think there is any testimony from which it could be inferred that it must have been apparent to the car driver that the plaintiff was in a crippled condition,' having to use a cane or crutches to aid him in moving about, or that consequently he was called upon t.o use a greater degree of care than in the case of an apparently well and sound passenger. We do not think the [184]*184■charge should have been given. R. R. Co. vs. Houstoun, 95 U. S., 697, 703. There is nothing in this case or presented by the testimony calling for the exercise of the ■“ greater degree of care ” contemplated by the charge. It is not meant by what is said above to impute negligence to the plaintiff as we are not dealing with that particular ■question.
II. Uegligence is the failure to observe, for the proteetection of another’s interests, such care, protection and vigilance as the circumstances justly demand, and the want of which causes him injury. And it cannot be presumed, but must be affirmatively proved. Brown vs. Street Railway, 49 Mich., 153.
The burden of proof is on the plaintiff to show that the ■defendant was negligent, and that his negligence caused the iujury. Pearce on Railroads, 298. The negligence of the defendant is the gist of the action, and the absence of negligence on the part of the plaintiff is equally important. Dey vs. N. Y. Central R. Co., 34 N. Y., 9; 18 N. Y., 248.
To the liability of a railway company as passenger carrier, two things are requisite—that the company shall be guilty of some negligence or omission which mediately or immediately produced or enhanced the injury; and that the passenger should not have been guilty of any want of ordinary care and prudence which directly contributed to the injury; since no one can recover for an injury of which his own negligence was in whole or in part, the proximate cause. 2 Redffeld on Railways, 240. We are unable to find in the testimony any proof of negligence on the part of the defendant, within the rules laid down as to the duty of the driver, in so far as the plaintiff is concerned, under the circumstances. It does not appear what time the ■driver gave him to get in the car and get seated-There is no proof to show that the time given was not [185]*185amply sufficient for a person having no infirmity to go in and take his seat, or even also deposit his pay, if such be the rule. There is no proof as to the suddenness or degree of force with which the car was started, none that there was any jerking, or that it was started in any unusual manner. 38 Mich., 506. The conduct of the driver after the mishap does not of itself indicate a spirit careless of the welfare of his passenger, hór that he had started in a manner regardless of or thoughtless as to their comfort or interest. We see no proof of such acts or omissions upon the part of the driver as show a failure to observe such care, precaution and vigilance as the circumstances demanded—in a word, no affirmative proof of negligence. When we ask where is the proof of negligence, what are the doings, and the manner and mode or time of the doings, what is the omission showing the negligence, the record does not present them. It is not necessary to establish negligence on the part of a plaintiff to relieve a defendantfrom the same charge. The mere fact that an accident has occurred does not prove negligence in the defendant. The plaintiff must show that the accident was caused by the defendant’s negligence ; till this is done the defendant may remain passive at the trial.
A new trial is awarded.