Paine, J.
This is an action by Katherine Nichols, widow, as special administratrix of the estate of George Nichols, deceased, against Lumir Havlat, for the death of George Nichols, who was killed when struck by the defendant’s truck. The first time the case was tried to a jury in the district court they were unable to agree, and were discharged. The second trial occurred in October, 1940, and the jury returned a verdict for $7,000 in favor of the plaintiff, for which amount a judgment was entered. Defendant appealed.
This case was first argued to this court on September 19, 1941, and the opinion is found in 140 Neb. 723, 1 N. W. (2d) 829, which opinion was released January 9, 1942.
A very full and complete statement of the case and of the facts, including extensive quotations from the evidence, is set out in the first opinion, to which reference is hereby made. Before discussing the law, a brief synopsis of facts which are practically undisputed will be set out.
George Nichols, the husband of the plaintiff, was 63 years old when he was killed on April 17, 1940. He was a common laborer at the Armour packing house, but had been on a vacation for a few days. He lived at 36,28 Y street, South Omaha, which was about two and a half miles from the place where he was killed. He left home that afternoon [536]*536about 3 o’clock, his family expecting that he would return for supper. When he did not return, the wife sent one of the children down three or four blocks from home to a couple of taverns to inquire if he was there, but he was not. His family could give no reason why he was out at the place where he was killed, on Q street near Sixty-first.
The defendant Havlat owned and operated a large farm Chevrolet truck, with a standard trailer attached, the two weighing about 31,000 pounds, and the truck was going west. It was loaded with 375 bushels of corn, which he was taking to Dorchester, where he lived. Havlat, the owner of the truck, was riding- in it, and was sound asleep in the cab until after the accident, his truck being driven by his employee, Lumir Belohlavy.
The accident happened about 10 p. m., west of the city limits of Omaha, on an arterial highway known as Q street, the main highway into South Omaha from the west. The pavement is 18 feet in width, with a 10-foot cindered shoulder on each side of the brick. There was considerable traffic at this point on the night of the accident. The lights of oncoming cars blinded the driver of the truck, and he did not see Nichols until he was just a few feet ahead of him and directly in front. The driver made a sudden turn, and upset the truck and trailer in the ditch on the left side of the highway, but did not avoid hitting- Nichols, who was killed.
Russell Meacham, a bus driver, driving a passenger bus east from Ralston to South Omaha over Q street, said that he saw Nichols standing on the highway about 125 feet west of the intersection of Sixtieth street and Q street, and as he turned out and passed him he was urinating approximately in the middle of- the road. He was at a staggering stand-still, sort of maneuvering around, facing southeast. The last time Meacham saw him he was going towards the north side of the road. Within four or five seconds the bus stopped at Sixtieth and Q to take on a passenger, and the defendant’s truck and trailer passed, and looking in his rear vision mirror he saw the tail-lights on the truck zigzag and turn a somersault. He immediately backed his bus [537]*537up a way and ran to the body of the deceased, which was on the highway. The truck was upside down in the ditch on the south side of the road. He remained at the place of the accident over 15 minutes. Nichols wore -dark clothing, and there were no street lights along Q street at this place.
William Malverd testified that he was waiting for the bus at the corner of Sixtieth and Q. He first saw Nichols east of Sixtieth street on Q street, walking west towards him. It was a dark night. “A. The only time I would see him was when there was a car coming from behind him. * * * Q. And what did he do then? * * * A. Well, he was off and on to the north side of the pavement. Q. And describe to the jury what you mean by that? A. Well, I would say he was staggering in a way. * * * Q. Now, where was he on the pavement and where was he off the pavement, as you have stated? A. You mean what part of the block? Q. Yes, that’s right. A. Well, it was a short distance east of 60th. Q. And did you see any cars pass Mr. Nichols east of 60th? A. Yes, sir. Q. And what took place, just what did you see when these cars were passing him? A. Well, one in particular, I would say, skidded about ten yards and came to a stop. * * * Q. What did Nichols do with reference to these cars? A. Well, he said something to them, but I didn’t really hear, I couldn’t definitely say what he said. * * * Q. How far were you from Mr. Nichols when he crossed 60th street? A. About the width of the pavement. Q. And about how far would that be? A. About twenty feet. Q. And tell the jury just what he did then as you saw it, describe his condition? * * * A. Well, he stopped and looked at me, and, as I said before, he was off and on the pavement as he walked down. Q. Did he go onto the north shoulder and then back onto the pavement? A. Yes, sir. Q. Well, describe to the jury just what you observed as to his condition. * * * A. I saw him staggering off and on the pavement. * * * Q. And der scribe to the jury what he was doing- with reference to going down that highway up to the time you saw the bus pass [538]*538him? A. Well, as I said before, he was off and on the pavement, and was staggering, and just as the bus was coming-up, he stopped in the north half of the pavement and was urinating, and as the bus passed him, well, that’s the last I saw of him.”
The witness testified that after Nichols was killed he went down there, and his legs and hips were on the pavement and his head and the top part of his body were over on the north shoulder.
An examination of the pleadings shows that the sixth paragraph of the amended answer reads as follows:
“Defendant further alleges that at the time of the collision between this defendant’s truck and the deceased, the deceased was in an intoxicated condition, had been staggering- around on the road in the presence of other vehicles, and that at the precise time of the collision between this defendant’s truck and the decedent, the decedent was urinating on the pavement and was so intoxicated that he was staggering from place to place on the pavement, which circumstances made it impossible for this defendant’s driver to have avoided a collision with the plaintiff’s decedent.
“Defendant further alleges that the gross negligence of the plaintiff’s decedent, as above set forth, was the' sole and proximate cause of the injuries and death of plaintiff’s decedent and that such gross negligence of plaintiff’s decedent at said time and place is and was sufficient to bar any recovery herein to the plaintiff from this defendant.”
Further, that instruction No. 1 tendered by the defendant and refused by the court reads as follows: “You are instructed that if you find from the evidence that the decedent George Nichols was under the influence of intoxicants or was intoxicated at the time of the collision and that said intoxication prevented him from exercising care for his own safety and protection and that he did not use ordinary care, then his failure to use such care contributed directly to his injury and your verdict will be for the defendant.”
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Paine, J.
This is an action by Katherine Nichols, widow, as special administratrix of the estate of George Nichols, deceased, against Lumir Havlat, for the death of George Nichols, who was killed when struck by the defendant’s truck. The first time the case was tried to a jury in the district court they were unable to agree, and were discharged. The second trial occurred in October, 1940, and the jury returned a verdict for $7,000 in favor of the plaintiff, for which amount a judgment was entered. Defendant appealed.
This case was first argued to this court on September 19, 1941, and the opinion is found in 140 Neb. 723, 1 N. W. (2d) 829, which opinion was released January 9, 1942.
A very full and complete statement of the case and of the facts, including extensive quotations from the evidence, is set out in the first opinion, to which reference is hereby made. Before discussing the law, a brief synopsis of facts which are practically undisputed will be set out.
George Nichols, the husband of the plaintiff, was 63 years old when he was killed on April 17, 1940. He was a common laborer at the Armour packing house, but had been on a vacation for a few days. He lived at 36,28 Y street, South Omaha, which was about two and a half miles from the place where he was killed. He left home that afternoon [536]*536about 3 o’clock, his family expecting that he would return for supper. When he did not return, the wife sent one of the children down three or four blocks from home to a couple of taverns to inquire if he was there, but he was not. His family could give no reason why he was out at the place where he was killed, on Q street near Sixty-first.
The defendant Havlat owned and operated a large farm Chevrolet truck, with a standard trailer attached, the two weighing about 31,000 pounds, and the truck was going west. It was loaded with 375 bushels of corn, which he was taking to Dorchester, where he lived. Havlat, the owner of the truck, was riding- in it, and was sound asleep in the cab until after the accident, his truck being driven by his employee, Lumir Belohlavy.
The accident happened about 10 p. m., west of the city limits of Omaha, on an arterial highway known as Q street, the main highway into South Omaha from the west. The pavement is 18 feet in width, with a 10-foot cindered shoulder on each side of the brick. There was considerable traffic at this point on the night of the accident. The lights of oncoming cars blinded the driver of the truck, and he did not see Nichols until he was just a few feet ahead of him and directly in front. The driver made a sudden turn, and upset the truck and trailer in the ditch on the left side of the highway, but did not avoid hitting- Nichols, who was killed.
Russell Meacham, a bus driver, driving a passenger bus east from Ralston to South Omaha over Q street, said that he saw Nichols standing on the highway about 125 feet west of the intersection of Sixtieth street and Q street, and as he turned out and passed him he was urinating approximately in the middle of- the road. He was at a staggering stand-still, sort of maneuvering around, facing southeast. The last time Meacham saw him he was going towards the north side of the road. Within four or five seconds the bus stopped at Sixtieth and Q to take on a passenger, and the defendant’s truck and trailer passed, and looking in his rear vision mirror he saw the tail-lights on the truck zigzag and turn a somersault. He immediately backed his bus [537]*537up a way and ran to the body of the deceased, which was on the highway. The truck was upside down in the ditch on the south side of the road. He remained at the place of the accident over 15 minutes. Nichols wore -dark clothing, and there were no street lights along Q street at this place.
William Malverd testified that he was waiting for the bus at the corner of Sixtieth and Q. He first saw Nichols east of Sixtieth street on Q street, walking west towards him. It was a dark night. “A. The only time I would see him was when there was a car coming from behind him. * * * Q. And what did he do then? * * * A. Well, he was off and on to the north side of the pavement. Q. And describe to the jury what you mean by that? A. Well, I would say he was staggering in a way. * * * Q. Now, where was he on the pavement and where was he off the pavement, as you have stated? A. You mean what part of the block? Q. Yes, that’s right. A. Well, it was a short distance east of 60th. Q. And did you see any cars pass Mr. Nichols east of 60th? A. Yes, sir. Q. And what took place, just what did you see when these cars were passing him? A. Well, one in particular, I would say, skidded about ten yards and came to a stop. * * * Q. What did Nichols do with reference to these cars? A. Well, he said something to them, but I didn’t really hear, I couldn’t definitely say what he said. * * * Q. How far were you from Mr. Nichols when he crossed 60th street? A. About the width of the pavement. Q. And about how far would that be? A. About twenty feet. Q. And tell the jury just what he did then as you saw it, describe his condition? * * * A. Well, he stopped and looked at me, and, as I said before, he was off and on the pavement as he walked down. Q. Did he go onto the north shoulder and then back onto the pavement? A. Yes, sir. Q. Well, describe to the jury just what you observed as to his condition. * * * A. I saw him staggering off and on the pavement. * * * Q. And der scribe to the jury what he was doing- with reference to going down that highway up to the time you saw the bus pass [538]*538him? A. Well, as I said before, he was off and on the pavement, and was staggering, and just as the bus was coming-up, he stopped in the north half of the pavement and was urinating, and as the bus passed him, well, that’s the last I saw of him.”
The witness testified that after Nichols was killed he went down there, and his legs and hips were on the pavement and his head and the top part of his body were over on the north shoulder.
An examination of the pleadings shows that the sixth paragraph of the amended answer reads as follows:
“Defendant further alleges that at the time of the collision between this defendant’s truck and the deceased, the deceased was in an intoxicated condition, had been staggering- around on the road in the presence of other vehicles, and that at the precise time of the collision between this defendant’s truck and the decedent, the decedent was urinating on the pavement and was so intoxicated that he was staggering from place to place on the pavement, which circumstances made it impossible for this defendant’s driver to have avoided a collision with the plaintiff’s decedent.
“Defendant further alleges that the gross negligence of the plaintiff’s decedent, as above set forth, was the' sole and proximate cause of the injuries and death of plaintiff’s decedent and that such gross negligence of plaintiff’s decedent at said time and place is and was sufficient to bar any recovery herein to the plaintiff from this defendant.”
Further, that instruction No. 1 tendered by the defendant and refused by the court reads as follows: “You are instructed that if you find from the evidence that the decedent George Nichols was under the influence of intoxicants or was intoxicated at the time of the collision and that said intoxication prevented him from exercising care for his own safety and protection and that he did not use ordinary care, then his failure to use such care contributed directly to his injury and your verdict will be for the defendant.”
The plaintiff’s amended reply is a general denial.
[539]*539However, all question of the decedent’s negligence was withdrawn from the jury, even though it was in the pleadings, and evidence relating- to it covered many pages in the bill of exceptions. The trial judge, instead of beginning his instructions with a brief synopsis of the petition, amended answer and amended reply, to set out the claims made by each party as the reason why each should prevail, gave as instruction No. 1:
“In a case of this kind, when the defendant alleges that the plaintiff’s decedent was guilty of contributory negligence, the burden is upon the defendant to establish such defense by a preponderance of the evidence.
“You are instructed, as a matter of law, that the defendant has failed to establish his defense of contributory negligence, and such defense is withdrawn from your consideration. You are further instructed that the defendant’s own testimony in this case makes him liable as a matter of law, under the rules laid down in cases of this kind by the supreme court of the state of Nebraska. Therefore, you are instructed that the defendant is liable to the plaintiff in some amount, and you are hereby instructed to return a verdict in favor of the plaintiff and against the defendant in some amount. In determining the amount of the plaintiff’s damages you will be guided by instructions 2 and 3 following.”
The trial judge thereby decided that defendant was guilty of actionable negligence, and that plaintiff’s decedent was not guilty of contributory negligence “as a matter of law or fact.” This left as the only question submitted to the jury, how much in damages do you think the plaintiff is entitled to under the evidence?
It is contended by plaintiff that not one single witness said George Nichols was drunk. This may be true, but many testified to his uncertain course and his constant staggering.
Under the subject “Intoxication,” as treated in Negligence in 38 Am. Jur. 883, sec. 203, it is said: “Voluntary intoxication does not relieve one from contributory negli[540]*540genee, or serve to relax the requirement which is imposed upon a person to exercise due care for his own safety. * * * A person threatened with a peril caused by the negligence of another is bound to exercise his intelligence and activity in full measure to avoid injury therefrom, and if it appears that from voluntary drunkenness he has deprived himself of the capacity so to do and as a result has suffered an injury, he will be denied legal redress therefor on the ground of contributory negligence. Thus, where one, by reason of his own voluntary intoxication, exposes himself to danger, and receives injuries which he could, and by the exercise of ordinary prudence would, have avoided if sober, he is guilty of contributory negligence and cannot recover for such injuries. However, the plaintiffs voluntary intoxication is not negligence per se, and will not of itself prevent a recovery; hence, it is error to enter a nonsuit or give a binding instruction to find for the defendant for the reason merely that the plaintiff was intoxicated. Intoxication defeats a recovery by the plaintiff for negligence only in so far as it affects the care which he takes for his own safety. Thus, evidence of plaintiffs intoxication is admissible, not as establishing contributory negligence in itself unless it' shows that the drunkenness was in such degree as to cause loss of control of the muscles and senses, but as a circumstance to be weighed by the jury in their determination of the issue whether or not the plaintiff exercised ordinary care for his own safety.”
Let us examine a few statements from the courts of other states:
“Whether the plaintiff suddenly staggered out in front of the car, or was walking in front of the car, in the middle of the lane of traffic where he was struck, in such a condition as not to be able to realize the danger, he was guilty of contributory negligence.” Jackson v. Cook, 176 So. (La. App.) 622.
“The fact that a person when injured' was intoxicated is not in itself evidence of contributory negligence, but it is .a circumstance to be considered in determining whether [541]*541his intoxication contributed to his injury. If it did, he cannot recover. If it did not, it will not excuse the defendant’s negligence. Ordinarily, it is a matter to go to the jury.” Coakley v. Ajuria, 209 Cal. 745, 290 Pac. 33.
“There can be no doubt of the rule that negligence may be inferred from circumstances, and while, as a matter of law, intoxication is not contributory negligence, or conclusive evidence of such negligence as will prevent a recovery, still such intoxication is evidence of negligence from which the jury are at liberty to infer such negligence as will bar the action, if the attendant facts so warrant.” Rhyner v. City of Menasha, 107 Wis. 201, 83 N. W. 303.
“Pedestrian who, while intoxicated, on a dark, wet night, completely covered with dark clothing, entered arterial boulevard without looking other than to take one look before entering boulevard, held eontributorily negligent, precluding recovery against motorist who struck him when he was about 20 feet from the curb.” Gibb v. Cleave, 55 Pac. (2d) 938 (12 Cal. App. (2d) 468).
“A pedestrian who was walking on the highway in the country in the nighttime while under the influence of intoxicating- liquor was required to exercise the same degree of care as that required of a sober person, as respects liability of motorist who struck and killed pedestrian.” Olstad v. Fahse, 282 N. W. 694 (204 Minn. 118).
“Much of defendants’ argument concerning- plaintiff’s case relates to the evidence of his intoxication at the time. The evidence about this was conflicting and its extent in affecting his conduct was for the jury to find.” Carr v. Orrill, 86 N. H. 226, 166 Atl. 270.
In 10 Blashfield, Cyclopedia of Automobile Law and Practice (Perm. ed. 1935) 366, sec. 6628, it is said: “The rule that the question of contributory negligence should be submitted to the jury where the evidence is conflicting has been applied in cases * * * where a person suddenly steps in front of a motor vehicle, or is injured at an intersection, or is struck while walking on public thoroughfare at night, or * * * where at the time he was struck the pedes[542]*542trian was intoxicated, standing- on the sidewalk or in the path of a truck.”
In the 1941 pocket parts to this Blashfield Cyclopedia, referring- to section 6628, it is said: “As previously mentioned in this section, the contributory negligence of an intoxicated person has been submitted to the jury, as has the question whether the pedestrian was in fact intoxicated or under the influence of liquor.”
In the bill of exceptions we find a statement made to the jury by the court before argument, as follows: “The Court: Now, gentlemen, we have reached the conclusion of this case, and it is now up to the lawyers to argue it. Prior to this time a motion has been made by the plaintiff to withdraw from the Jury consideration of all evidence except the amount of damages, for the reason that the testimony shows that the defendant, by his own testimony, was liable in this case, and that no evidence has been introduced to show that the plaintiff’s decedent was guilty of any contributory negligence. Now this motion has been sustained by the Court, so the only question that will be submitted to this jury will be the amount of the damages, if any, of the plaintiff, that the plaintiff is entitled to recover. The argument will be limited to that phase of it, so I am just announcing that ruling-, so that you will know why the evidence is not discussed except that phase, the amount of the plaintiff’s damages, if any.”
In our opinion, this ruling of the court and the written instructions to the same effect were erroneous. The evidence shows that the deceased had left his home in the afternoon and was expected to return for supper. When he did not, they sent to two taverns to find him. At 10 o’clock that night he was staggering along a road ouside the city limits, going farther away from home. Cars proceeding in orderly fashion along this road had to turn out to go around him, or slide their wheels to avoid hitting him. When a bus was approaching, he stopped near the middle of the road to respond to a call of nature, maneuvering unsteadily around while so occupied.
[543]*543With this evidence, and much more to the same effect, the ruling of the district court that the deceased as a matter of law was not guilty of contributory negligence was clearly erroneous, and that issue should have been submitted to the jury under the usual instructions.
The former opinion of this court in this case, found in 140 Neb. 723, 1 N. W. (2d) 829, is hereby set aside in so far as it conflicts herewith.
In a personal injury action, where there is evidence tending to show contributory negligence on the part of plaintiff’s decedent, that question should be submitted to the jury under the provisions of section 20-1151, Comp. St. 1929. See Sgroi v. Yellow Cab & Baggage Co., 124 Neb. 525, 247 N. W. 355.
The judgment of the district court is hereby set aside and the cause remanded for a new trial in accordance herewith.
Reversed.