McCarty, District Judge:
After stating the facts delivered the opinion of the court.
It appears from the record that there is a conflict in the testimony on the vital issues of the case. At the conclus[143]*143ion of the testimony for plaintiff, Margaret Linden, wife of decedent, who had testified in her own behalf, was recalled by defendant for further examination, and over the objections of her counsel was compelled to answer the following questions:
"Q. Did the Anchor Mining Company send or give you anything in the way óf a donation ?
“A. I do not know whether the Anchor Mining Company gave me anything or not. They took up a collection from the men at the mine. They may have given some to the collection. How much the Anchor Mining Company gave, if they gave anything I don’t know. They paid the funeral expenses, I believe, and sent two nurses to take care of him, and that is about all.
“Q. And the doctors ?
“A. And the doctors. ”
The witness was not asked, nor did she testify on her direct examination, as to anything the defendant had done or failed to do by way of furnishing her assistance. Neither payment, nor a release of any kind was pleaded by respondent. This evidence was, therefore, immaterial and inadmissible for any purpose, and the objection to its introduction should have been sustained. There being a sharp conflict in the testimony on the material issues in' the case, this evidence could not have been other than prejudicial to plaintiff. Evidence of respondent’s generosity in taking up a collection for the benefit of plaintiff and paying for medical and surgical assistance rendered decedent, would naturally have a tendency to influence the jury to some extent in favor of defendant and to draw their minds away from the main issues in the case. Snowden v. Pleasant Valley Coal Co., 16 Utah 336; Stoll v. Mining Co., 19 Utah 271; 57 Pac. Rep. 295.
The court instructed the jury that the burden was upon [144]*144the plaintiff to prove to their satisfaction by a preponderance of the evidence, “That the decedent, James Linden, was killed by reason and because of the unsafe condition of the drift and chute in question, and without any fault on his part and while he was taking due and proper care for his own safety.” Appellant duly excepted to this instruction, the giving of which is now assigned as error. The rule is well settled by abundant authority that in an action for damages for personal injuries or death, the burden of proving contributory negligence is on the defendant, ' and the plaintiff is not required to prove the absence of contributory negligence on his part. This rule is subject to the exception that where the evidence for plaintiff shows contributory negligence on his part, the defendant is not required to prove it. “Where the facts proved by the plaintiff do not, upon their face show negligence in the plaintiff, the opposing party, if he relies upon the acts of negligence, must show it.” Bowers v. U. P. R. R. Co., 4 Utah 224; Smith v. Occidental Steamship Co., 99 Cal. 462; Daly v. Hinz, 113 Cal. 336; Nelson v. City of Helena, 16 Mont. 21; McDougal v. Con. R. R., 63 Cal. 431.
In response to this assignment of error respondent calls attention to and relies upon a further instruction given by the court, wherein the court instructed the jury as follows: “Before you can find the decedent guilty of contributory negligence, you must be satisfied by a preponderance of the evidence that he failed to observe that degree of care and caution that an ordinarily prudent person engaged in the same business and under like circumstances would have used.”
It will be observed that the two instructions ai’e inconsistent and contradictory upon one of the material issues in the case. In the first instruction the jury were in [145]*145effect told that the burden was on the plaintiff to show by a preponderance of the evidence that the decedent, James Linden, was not guilty of contributory negligence, and in the other instruction the jury were told that the burden was on the defendant to show contributory negligence on the part of decedent. The first instruction was clearly erroneous and prejudicial to plaintiff, and while the subsequent instruction on the same issue was unduly favorable to plaintiff, it cannot be held that it rendered the first harmless or neutralized the effect it might have had on the minds of the jury. Monroe v. Cooper, 6 Pac. 378; Owning v. Bartels, 3 Pac. 225; Agnew v. Kimball, 9 Pac. 91; Hold v. Spokane & P. Ry. Co., 35 Pac. 39; Haight v. Vallet, 26 Pac. 897; Kelly v. Cable Co., 14 Pac. 633.
Respondent contends that the evidence as disclosed by the record fails to show negligence on the part of defendant, but shows negligence on the part of the decedent, and if any errors existed they were harmless and not prejudicial to plaintiff as the facts preclude a recovery.
The defendant was legally bound to provide decedent a reasonably safe place in which to perform the work required of him in the employment, and to exercise ordinary care in rendering and keeping the approaches leading to and from the place where the work was being performed in a reasonably safe condition. It must be conceded that the location of the chute in the middle of the track at a point where the stope did not exceed five feet in width, rendered it extremely dangerous for decedent to pass the chute When it was left uncovered and without a light to indicate its exact location. It must also be conceded that the increased danger to the employment because of the location of the chute could, with comparatively little expense, have been avoided, by building the chute so that [146]*146the opening thereof would have been at one side of the track and passage way. The defendant having constructed the chute so as to make of the situation one of extraordinary danger, it was its duty to exercise care and diligence in proportion to the perils and dangers of the situation by providing and keeping at the mouth of the chute the necessary and usual safeguards. The rule is, the greater the.danger, the greater the care required. Bailey Mast. Liab., p. 54; Handley v. Mining Co., 15 Utah 176.
When the decedent went to work in the stope in question he had a right, to presume and act upon the presumption that defendant had performed and would continue to perform every duty incumbent upon it in this respect. Sherman and Redfield on Negligence, sec. 185b.
If the defendant failed to use that degree of care and diligence that prudent and reasonable men skilled in the particular business would ordinarily use under the same or similar circumstances, and the accident was the result of such negligence, then defendant is liable unless the decedent was also negligent, or the circumstances and conditions were such as to make of the dangers, assumed risks.
Decedent was an experienced and skilled miner, and when he entered- the service' of defendant he assumed all the risks and hazards incident to, and that ordinarily belong to the occupation in which he was engaged.
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McCarty, District Judge:
After stating the facts delivered the opinion of the court.
It appears from the record that there is a conflict in the testimony on the vital issues of the case. At the conclus[143]*143ion of the testimony for plaintiff, Margaret Linden, wife of decedent, who had testified in her own behalf, was recalled by defendant for further examination, and over the objections of her counsel was compelled to answer the following questions:
"Q. Did the Anchor Mining Company send or give you anything in the way óf a donation ?
“A. I do not know whether the Anchor Mining Company gave me anything or not. They took up a collection from the men at the mine. They may have given some to the collection. How much the Anchor Mining Company gave, if they gave anything I don’t know. They paid the funeral expenses, I believe, and sent two nurses to take care of him, and that is about all.
“Q. And the doctors ?
“A. And the doctors. ”
The witness was not asked, nor did she testify on her direct examination, as to anything the defendant had done or failed to do by way of furnishing her assistance. Neither payment, nor a release of any kind was pleaded by respondent. This evidence was, therefore, immaterial and inadmissible for any purpose, and the objection to its introduction should have been sustained. There being a sharp conflict in the testimony on the material issues in' the case, this evidence could not have been other than prejudicial to plaintiff. Evidence of respondent’s generosity in taking up a collection for the benefit of plaintiff and paying for medical and surgical assistance rendered decedent, would naturally have a tendency to influence the jury to some extent in favor of defendant and to draw their minds away from the main issues in the case. Snowden v. Pleasant Valley Coal Co., 16 Utah 336; Stoll v. Mining Co., 19 Utah 271; 57 Pac. Rep. 295.
The court instructed the jury that the burden was upon [144]*144the plaintiff to prove to their satisfaction by a preponderance of the evidence, “That the decedent, James Linden, was killed by reason and because of the unsafe condition of the drift and chute in question, and without any fault on his part and while he was taking due and proper care for his own safety.” Appellant duly excepted to this instruction, the giving of which is now assigned as error. The rule is well settled by abundant authority that in an action for damages for personal injuries or death, the burden of proving contributory negligence is on the defendant, ' and the plaintiff is not required to prove the absence of contributory negligence on his part. This rule is subject to the exception that where the evidence for plaintiff shows contributory negligence on his part, the defendant is not required to prove it. “Where the facts proved by the plaintiff do not, upon their face show negligence in the plaintiff, the opposing party, if he relies upon the acts of negligence, must show it.” Bowers v. U. P. R. R. Co., 4 Utah 224; Smith v. Occidental Steamship Co., 99 Cal. 462; Daly v. Hinz, 113 Cal. 336; Nelson v. City of Helena, 16 Mont. 21; McDougal v. Con. R. R., 63 Cal. 431.
In response to this assignment of error respondent calls attention to and relies upon a further instruction given by the court, wherein the court instructed the jury as follows: “Before you can find the decedent guilty of contributory negligence, you must be satisfied by a preponderance of the evidence that he failed to observe that degree of care and caution that an ordinarily prudent person engaged in the same business and under like circumstances would have used.”
It will be observed that the two instructions ai’e inconsistent and contradictory upon one of the material issues in the case. In the first instruction the jury were in [145]*145effect told that the burden was on the plaintiff to show by a preponderance of the evidence that the decedent, James Linden, was not guilty of contributory negligence, and in the other instruction the jury were told that the burden was on the defendant to show contributory negligence on the part of decedent. The first instruction was clearly erroneous and prejudicial to plaintiff, and while the subsequent instruction on the same issue was unduly favorable to plaintiff, it cannot be held that it rendered the first harmless or neutralized the effect it might have had on the minds of the jury. Monroe v. Cooper, 6 Pac. 378; Owning v. Bartels, 3 Pac. 225; Agnew v. Kimball, 9 Pac. 91; Hold v. Spokane & P. Ry. Co., 35 Pac. 39; Haight v. Vallet, 26 Pac. 897; Kelly v. Cable Co., 14 Pac. 633.
Respondent contends that the evidence as disclosed by the record fails to show negligence on the part of defendant, but shows negligence on the part of the decedent, and if any errors existed they were harmless and not prejudicial to plaintiff as the facts preclude a recovery.
The defendant was legally bound to provide decedent a reasonably safe place in which to perform the work required of him in the employment, and to exercise ordinary care in rendering and keeping the approaches leading to and from the place where the work was being performed in a reasonably safe condition. It must be conceded that the location of the chute in the middle of the track at a point where the stope did not exceed five feet in width, rendered it extremely dangerous for decedent to pass the chute When it was left uncovered and without a light to indicate its exact location. It must also be conceded that the increased danger to the employment because of the location of the chute could, with comparatively little expense, have been avoided, by building the chute so that [146]*146the opening thereof would have been at one side of the track and passage way. The defendant having constructed the chute so as to make of the situation one of extraordinary danger, it was its duty to exercise care and diligence in proportion to the perils and dangers of the situation by providing and keeping at the mouth of the chute the necessary and usual safeguards. The rule is, the greater the.danger, the greater the care required. Bailey Mast. Liab., p. 54; Handley v. Mining Co., 15 Utah 176.
When the decedent went to work in the stope in question he had a right, to presume and act upon the presumption that defendant had performed and would continue to perform every duty incumbent upon it in this respect. Sherman and Redfield on Negligence, sec. 185b.
If the defendant failed to use that degree of care and diligence that prudent and reasonable men skilled in the particular business would ordinarily use under the same or similar circumstances, and the accident was the result of such negligence, then defendant is liable unless the decedent was also negligent, or the circumstances and conditions were such as to make of the dangers, assumed risks.
Decedent was an experienced and skilled miner, and when he entered- the service' of defendant he assumed all the risks and hazards incident to, and that ordinarily belong to the occupation in which he was engaged. This assumption of risks and hazards, however, did not include those that might arise from the negligence of defendant in failing to use ordinary and reasonable care to keep the premises in question in a reasonably safe condition.
The court instructed the jury that if they found that the deceased, James Linden, knew of the existence and loca[147]*147tion of the chute, plaintiff cannot recover. Plaintiff excepted to this instruction and now alleges that the giving of it was error. This instruction was erroneous. It does not necessarily follow that because decedent, a year prior to the accident, constructed the chute in question and knew of its existence and location, he was guilty of negligence, or that he assumed the increased hazards and risks created and caused by the chute being occasionally left uncovered and without a light. These are questions of fact for the jury, the determination of which must necessarily depend upon decedent’s knowledge, if any he had, at the time and prior to the time of the accident, of the dangerous condition in which the chute was sometimes left when not in active use, and the degree of care and caution exercised by him at the time the accident occurred. It appears from the testimony of defendant’s witnesses that defendant gave orders to the car men and shovelers to keep the chute lighted, and to keep it covered when not in use; and the decedent had nothing whatever to do with the supervision and management of it. It is evident that if these orders had been carried out and the chute kept covered and guarded, the accident would not have happened. And there is some evidence in the record that tends to show that the chute was frequently left uncovered and without a light when not ‘in use, and that defendant must necessarily have known that it was so left, as it was the custom of its foreman to go through and inspect the mine twice each day. The testimony of Patrick Powers, wherein he testifies that he generally failed and neglected to carry out defendant’s orders with respect to keeping the chute covered and lighted, and that defendant had knowledge of such failure and neglect, tends to show that this condition of affairs existed. And the evidence is far from conclusive that decedent knew or by the exercise of ordinary care ought to have known that the chute was occa[148]*148sionally left uncovered and without a light, when not in use, or that there was a want of due care on his part in not observing the open chute.
We do not think the facts in this case as shown by the record would warrant this or any court in holding, as a matter of law, that decedent was guilty of contributory negligence, or that he knew or ought to have known, that the chute was frequently left uncovered and without a light when not in use so as to make of the extra dangers and hazards caused thereby assumed risks! In the case of Railroad v. Everett 14 Sup. Ct. Rep. 474, the court says, “It is well settled that where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because of the facts being undisputed, fair-minded men will honestly draw different conclusions from them.” Railroad Co. v. McDade, 135 U. S. 554; Railroad Co. v. Converse, 139 U. S. 469; Railroad Co. v. Powers, 13 Sup. Ct. Rep. 748.
This rule of law has been repeatedly invoked and followed in this state. Reddon v. Railway Co., 5 Utah, 44; Seley v. So. Pa. Co., 6 Utah, 319; Anderson v. Depot Co., 8 Utah, 128; Woods v. Railroad Co., 9 Utah, 146; Smith v. Railroad Company, 9 Utah, 144; Chapman v. So. Pa. Co., 12 Utah, 30; Anderson v. Mining Co., 15 Utah, 22.
There being a conflict in. the evidence on most of the material issues in the case we would not disturb the judgment of the trial court were it not for the errors of law which we have considered. Because of these errors the case must be reversed, and a new trial granted, and it is so ordered. The costs of this appeal to be taxed against, the respondent.
Bartch, C. J. and Baskin, J., concur.