BICKLEY, Justice.
Plaintiff (appellee) sued defendant in the district court of Dona Ana county for damages by reason of personal injuries allegedly • sustained in an automobile collision. Trial being before a jury, plaintiff had judgment for $375 on the general verdict in his favor for that amount. Defendant appeals and assigns one error, viz., the refusal of the trial court 'to render judgment in his favor upon the jury’s answer to a special interrogatory submitted at his request which he maintains is' in irreconcilable conflict with the general verdict.
The evidence is omitted from the record.' We have only the pleadings, instructions, general and special verdicts, motions incident thereto, judgment containing order allowing appeal and praecipe. From so much of the record as is before us, it appears the ground of negligence asserted is the claimed careless act of defendant in propelling his automobile into the rear. of. plaintiff’s car, which was traveling in the same direction, causing the injuries complained of.
The defendant, although admitting that his car struck the rear portion of plaintiff’s car, as claimed, denied generally the allegation of negligence made by plaintiff. The collision having occurred in the nighttime, the defendant pleaded contributory negligence on plaintiff’s part in this: “That at the time of the accident complained of there was no tail light or rear light exhibiting a red or yellow light plainly visible for a distance of five hundred feet to the. rear of said car; .and in fact there was no bulb in the tail light on the occasion of said accident.”
In so pleading the defendant obviously sought to charge a violation of Comp.St. 1929, § 11-847, requiring the presence of taillights on motor vehicles. The trial court charged the jury that failure to observe a statutory duty or requirement was negligence per se. It defined negligence and contributory negligence and “proximate cause” in the usual form and in a manner satisfactory to the parties. The material substance of the instructions was that if the plaintiff sustained the- injuries, alleged and established negligence of defendant, and plaintiff was injured as á proximate cause of such negligence, the verdict should be for the plaintiff, unless defendant established that plaintiff was negligent at the same time and that plaintiff’s negligence proximately contributed to the collision, and if defendant established these things, the verdict should be for defendant.
At defendant’s request certain special interrogatories were submitted, reading:
“Special Findings.
“We, the Jury, find the special findings submitted, as follows:
“(a) ‘Was Pettes’ Truck equipped with a tail light at the time of the accident which exhibited a red or yellow light plainly visible for a distance of 500 feet to the rear of said Truck?’ We find and answer: (Signed) No.
“(b) ‘Did the failure of Pettes’ truck to be equipped with a tail light contribute to any extent to cause the collision?’ We find the Answer: (Signed) Yes.
“[Signed] Pedro Maese, Foreman.”
Upon the return of such verdicts the defendant moved for judgment non obstante veredicto. This motion was formally denied in the judgment in plaintiff’s favor on the general verdict. Claimed error in its denial, as we have hereinabove pointed out, presents the sole question for decision.
We must determine whether the special findings are inconsistent with the general verdict. If so, the former shall control the latter. “Trial Court Rules,” § 70-103. However, before declaring a conflict, an effort should be made to reconcile apparent inconsistency. In order to prevail, the special finding should clearly exclude every reasonable conclusion that would authorize the general verdict. Moreover, no presumptions will be indulged in favor of answers to special findings as against the general verdict. But “the very purpose of special, findings is to test the validity of the general verdict by ascertaining whether or not it may have been the result of a misapplication of the law to actual findings in material conflict with the findings which in their absence would be implied from the general verdict. In other words, the response of the jury to the special issues or particular questions of fact may show that no judgment can properly be entered in favor of a plaintiff upon a general verdict because the jury has not found in his favor upon some material issue, or has found against him as to some fact fatal to his cause of action.” Plyler v. Pacific Portland Cement Co., 152 Cal. 125, 92 P. 56, 59.
Bearing in mind these applicable rules of construction, we are forced to the conclusion that there is here shown such inconsistency as will vitiate the general verdict. The plaintiff is found negligent through failure to comply with the statute requiring taillights. But before that negligence, under instructions given, should bar recovery, it must be such as “combined and concurred with the defendant’s negligence, arid contributed to the injury as a proximate cause thereof, and as an element without which the injury would not have occurred"; in other words, plaintiff’s negligence must have proximately contributed to his injury in order to defeat his recovery.
The general verdict inferentially carried the finding of defendant’s negligence and that such negligence was a “proximate cause” of plaintiff’s injuries. That inference is no stronger than that the special findings -that the failure of Pettes to have his truck equipped with a taillight was negligence and that such failure contributed to the collision carried a finding that such negligent failure of the plaintiff to comply with the statute was a “proximate cause” of such injuries. Neither the general nor special verdict employed the phrase “proximate cause.”
So we have a case where it will be important to understand the meaning of the phrase “proximate cause” and the methods of ascertaining its existence in a particular case.
It seems so obvious that the special findings are inconsistent with the general verdict that no argument should be necessary. Since all aré not in agreement, it seems advisable to invoke support for our conclusion.
First, there is abundant precedent to support it and none against it. The Supreme Court of Kansas in Lathrop v. Miller (1931) 132 Kan. 425, 295 P. 722, 723, dealt with a similar case. The action was brought by Mary Lathrop against Burke Miller to recover damages sustained to her when an automobile driven by defendant was run against her. She recovered damages and the defendant appealed. With the verdict in favor of plaintiff, there were a number of special findings returned by the jury. One of these was as follows:
“8. Do you find that plaintiff by her own negligence contributed to the injury complained of? A. Yes. * * *
“Upon the evidence the jury has expressly found that plaintiff by her own negligence contributed to her injury. So often has it been decided that special findings in conflict with the general verdict control the general verdict, that citations of authority are hardly justified. * * *
“Assuming that there was negligence, on the part of the defendant, and that the ordinary negligence of the plaintiff contributed to her injury, there is no escape from the conclusion that it bars a recovery of damages for the injuries she sustained. Plaintiff contends that, while the jury found contributory negligence on her part, the finding does not necessarily mean that her negligence was the proximate cause of the injury. Even if [it] was not the primary cause, but did contribute in a degree, it must be interpreted as a proximate and not a remote cause. * * * The effect of the finding is that her acts and omissions contributed directly to the injury, and, where the negligence of the injured person is in part a contributing cause, it is to be regarded as a proximate cause.”
In the case at bar, in order for the general verdict to stand, we would have to conclude that the negligence of the defendant was the sole proximate cause of the collision. The jury by its special findings has said that such is not the case.
If the jury believed from the evidence that the defendant was driving so negligently and carelessly that the collision would have occurred even if the plaintiff’s truck had been properly equipped with taillights, they would have answered the second interrogatory in the negative. They said that the acts of the defendant and the omission of the plaintiff concurred in causing the collision. To say that the omission of plaintiff with respect to taillights contributed to the collision and concurred with defendant’s negligence to cause the injury is to repudiate the idea that the collision would have happened if the plaintiff’s' truck had been equipped with taillights, so we must conclude that the special verdict carried a finding that but for the negligence of the plaintiff, together with the negligence of the defendant, the collision would not have occurred.
In line with the decision of the Supreme Court of Kansas in Lathrop v. Miller, supra, we find a decision of the Commission of Appeals of Texas, Hines v. Foreman, 243 S.W. 479, 483. Foreman sued Hines as Director General of Railroads to recover damages because of a collision between an automobile driven by plaintiff and one of defendant’s trains. Among other defenses, the railroad interposed the defense of contributory negligence on the part of plaintiff based on the allegation that plaintiff was driving his car without having a muffler cut-out thereon as required by law. The court said:
“The first question of importance raised by plaintiffs is embodied in the contention that the finding of the jury upon the use of the muffler cut-out is insufficient to defeat plaintiff’s right of recovery because there was no finding that such act was a proximate cause or a proximate contributing cause of the accident. The specific finding is that the running of the car without a muffler ‘caused or contributed to cause the injury.’ * * * We have reached the conclusion, however, that as applied to the facts in the present case this contention cannot be sustained. The province of the jury is to determine the controlling facts upon which there is a controversy in the evidence. If under the facts of a case the violation of a statute might reasonably be a cause of the accident, but not necessarily a proximate cause thereof, then a jury finding to the effect only that it was a cause, in the absence of a finding that it was a proximate cause, would be wanting in an essential element as a finding of contributory negligence. We are unable to conceive, however, of any theory upon which the jury could find that the failure to use the muffler could cause or contribute to the injury in the present case without doing so proximately. The only possible way in which such failure could contribute to any degree in causing the injury was in preventing the occupants of the car from hearing, and therefore from discovering, the approach of the train in time to avoid the collision. It is plain from plaintiff’s testimony that he neither saw nor heard the train until the car was upon the crossing, when it was too lqte for him to avoid the accident. The conclusion is irresistible that, if plaintiff had discovered the train in time to have stopped his car, he would have done so and the accident would not have happened. Speculation upon this question would be useless. Furthermore, the finding itself eliminates any question which might arise in this regard. If plaintiff would not have stopped his car even if he had heard the train in time to have done so, then his failure to hear it was a wholly immaterial matter and could not have been in any sense a contributing cause to the injury. It seems clear to us that the finding that the failure to use the muffler caused or contributed to the injury necessarily includes a finding■ under the peculiar facts of this case that it was a proximate contributing cause, and being a violation of a positive statute upon the subject, and therefore negligence per se, contributory negligence of the plaintiff would follow as a matter of law from this jury finding.” (Italics ours.)
These observations are very cogent and touch our case in several places, The instinct of self-preservation suggests that defendant did not run into plaintiff intentionally and wantonly, and it is not charged ’that he, did so, and we might paraphrase the language of the Texas Court thus: “If defendant would not have stopped his car even if plaintiff had had tail lights on his automobile, then plaintiff’s omission to have such lights was a wholly immaterial matter and could not have been in any sense a contributing cause to the collision.” And further paraphrasing: “The only possible way in which plaintiff’s omission could contribute in any degree to the collision was in preventing defendant from discovering the presence of plaintiff’s car as soon as it might have been discovered if it had been equipped with lights.” Drawing upon the most elemental of human experiences pertaining to motor vehicle travel at night, the relationship between darkness and danger, and the relationship between light signals and safety which is so readily apparent to us, must be assumed to have been within the understanding of the jurors as reasonable men and so the special finding must be interpreted in the light of such universal knowledge.
In Foster v. Beckman, 85 S.W.(2d) 789 (the facts being different from those in the case at bar) the Texas Court of Civil Appeals distinguished Hines v. Foreman, but they did not, as they could not, overrule that decision.
In Behymer v. Mosher Mfg. Co. (Tex.Civ.App.) 192 S.W. 1148, the court decided: “An affirmative answer by the jury to a special issue submitted, whether plaintiff’s contributory negligence ‘caused or contributed to cause’ injury, bars plaintiff’s recovery, although such special issue did not use the word ‘proximately’; proximateness of the cause being necessarily implied.”
The court quotes from an earlier decision (Ratteree v. Galveston, H. & S. A. R. Co., 36 Tex.Civ.App. 197, 81 S.W. 566) the following: “We cannot conceive of negligence that 'caused or contributed’ to an injury not being such negligence as must have ‘proximately contributed’ to the injury.” See, also, Anderson v. Southern Kansas Stage Lines Co., 141 Kan. 796, 44 P.(2d) 234; Riley v. Guthrie, 218 Iowa, 422, 255 N.W. 502; Wall v. Cotton et al., 22 Ala.App. 343, 115 So. 690. And see Russell v. Davis, 38 N.M. 533, 37 P.(2d) 536, as to standards of conduct and reciprocal duties of those who travel the highways.
In Bullard v. Ross (1933) 205 N.C. 495, 171 S.E. 789, and Crane v. Carswell (1932) 203 N.C. 555, 166 S.E. 746, the court, dealing with situations almost identical with the case at bar, decided as we do. See, also, Baker v. Wilmington & W. R. Co., 118 N.C. 1015, 24 S.E. 415, a leading case cited in the foregoing North Carolina decisions where the court goes more into detail in stating the reasons for the conclusion, and is of great importance in our considerations because it explains why some courts have expressed opinions which seem at variance with those we here express, the reason in many instances arising from their system of permitting application of the last clear chance doctrine without being pleaded in plaintiff’s complaint. Some of the expressions in the opinion are: “Where nothing more appears from the verdict of the jury, or by way of admissions in the pleadings, or in the record or statement of the case on appeal, than that the injury of a complainant was caused by the negligence of the defendant, the plaintiff may of right demand judgment for the damages ascertained by the jury, and for costs. Where it is found, in addition, that the plaintiff’s own carelessness contributed to bring about the injury, the court, in the absence of any further finding, must assume that the contributory negligence was a concurrent cause, and give judgment for the defendant.”
We venture some further support to our conclusion and the decisions cited drawing upon the principles involved in the method of proving proximate cause.
In our consideration, we eliminate as valueless decisions from jurisdictions where the comparative negligence doctrine prevails, it being inapplicable here; and those jurisdictions where violation of a safety statute is only prima facie evidence of negligence. In New Mexico violation of a safety statute is negligence; and also decisions of the courts of those states where the “last clear chance” doctrine is available to plaintiff without being pleaded in his complaint, and must also eliminate decisions from jurisdictions where degrees of negligence are recognized. In Thayer v. Denver & R. G. R. R. Co., 21 N.M. 330, 154 P. 691, it was decided that in this state there is no warrant for classification of negligence into de* grees, viz., slight, ordinary, and gross, and also that the doctrine of “last clear chance” if relied upon hy plaintiff must be pleaded in his complaint.
Prof. Leon Green, author of the work on “Rationale of Proximate Cause,” in an article appearing in Vol. 1, Texas Law Review, pp. 243, 423, entitled “Are Negligence and ‘Proximate’ Cause Determinable by the Same Test?” makes the following statement:
“Our courts and text writers have repeatedly declared in negligence cases, no fixed, standard of conduct having been prescribed, that the conduct of an ordinarily prudent person under the given circumstances is the standard hy which negligence of a particular defendant is, to be determined. And that what an ordinarily prudent person would have done under given circumstances is determined by what he should have foreseen as the probable consequence of his conduct. In other words, if an ordinarily prudent person under the given circumstances would have foreseen as a probable consequence of his conduct, hurt to the plaintiff, or some one similarly situated, then defendant owed the duty to exercise care, and failing to do so, is guilty of negligence. (Italics ours.)
“With equal consistency the courts have declared ip negligence cases that a defendant is only liable in damages for those consequences that he, as an ordinarily prudent person, should have reasonably foreseen as a probable result of his conduct, and that if given consequences or consequences similar in character, could not have reasonably been foreseen, such are not ‘proximate’ consequences and cannot be recovered for. In other words the ‘probability,’ ‘foreseeability’ or ‘anticipation’ test is seemingly used both in determining the existence of negligence, and in determining for what consequences of such negligence a recovery may be had. It might be more accurate to say that our courts have apparently treated the existence of negligence and caiisal relation as the same problem, to be solved by the same formula.” ■
We think this is a correct statement of the prevailing rule. See Gilbert v. New Mexico Construction Co., 39 N.M. 216, 44 P.(2d) 489, as to foreseeability as a test of proximate cause.
“Negligence is the proximate cause of an injury when it appears that the injury was the natural and probable consequence (result) of the negligence or wrongful act, and it ought to be foreseen.” See Decennial Digests, Negligence, ®=>56(1) et seq.
In Melkusch v. Victor American Fuel Co., 21 N.M. 396, 155 P. 727, 729, we said: “It is well settled that one whose injuries are the proximate result of his violation of a statute is, as a matter of law, guilty of contributory negligence which precludes a recovery for the negligence of another which contributed to the injury.”
In Union Stockyards v. Peeler (Tex.Com.App.) 37 S.W.(2d) 126, 128, “proximate result” was thus defined: “Finding that injury was ‘proximate result’ of act of negligence requires showing that injury was natural and probable consequence and should have been foreseen.”
In Kelsey v. Rebuzzini, 87 Conn. 556, 89 A. 170, 52 L.R.A.(N.S.) 103, the court said: “ ‘Cause’ and ‘consequence’ are correlative terms, one implying the other, and when an event is followed in natural sequence by a result it is adapted to produce, or aid in producing, that result is a consequence of the event, and the event is the cause of the result.”
We quote from Moore v. Lanier, 52 Fla. 353, 42 So. 462, 465, as follows: “Proximate cause is that which naturally leads to or produces, or contributes directly to producing, a result such as might be expected by any reasonable and prudent man as likely to * * * follow and flow out of the performance or nonperformance of any act.”
“When there is danger of a particular injury which actually occurs, we must surely say that it is the usual, ordinary, natural, and probable result of the act exposing the person or thing injured to the danger.” 22 R.C.L., Proximate Cause, § 12.
“The meaning of proximate cause in this connection (causal relation) has been explained as follows: If the injury complained of is a natural and probable consequence of a violation of the statute, then that violation is correctly taken as the proximate cause of the injury. If the very injury has happened which was intended to be prevented by the statute law, that injury must be considered as directly caused by the nonobservance of the law.” 20 R.C.L., Negligence, § 37.
Prof. Green’s objection to the application of the probable consequence rule as a test of accountability is to those decisions which attempt to limit a plaintiff’s recovery to “probable” consequences. He says:
“The affirmative aspect of the rule, viz., that a defendant is responsible for the foreseeable consequences of his wrong is admittedly correct. The negative aspect, viz., that a defendant is not responsible for the unforeseeable consequences of his wrong is thought to be unsound and is the part of the rule which is thought to justify discussion.”
He quotes Shearman and Redfield, Negligence (6th Ed.) Vol. 1, par. 29a, as follows: “The affirmative of the rule of foreseen consequences is doubted by none, that is, that every one guilty of the violation of legal duty to another is liable for all the consequences of such violation of duty as could have been foreseen by a person of ordinary prudence in the defendant’s position at the time as probable.”
Let it be remembered that we have heretofore been referring to the method of ascertaining the existence of negligence and proximate cause when no fixed standard of conduct has been prescribed.
The violation of a statutory standard of conduct is negligence per se. By this expression is not meant that a new kind of negligence has been created. It is a process by which the existence of negligence is'to be ascertained. This thought is elaborated in Platt v. Southern Photo Material Co., 4 Ga.App. 159, 60 S.E. 1068, 1070: “Every violation of any of those duties of omission or commission, which, arising from man’s state as a social being, have received recognition by the law of the land, either generally or specifically, is an act of negligence. So long as these duties remain undefined or defined only in abstract general terms a breach is not properly denominated negligence per se; but when any specific act or dereliction is so universally wrongful as to attract the attention of the lawmaking power, and -this concrete wrong is expressly prohibited by law or ordinance a violation of this law, a commission of the specific act forbidden is for civil purposes correctly called negligence per se. In those jurisdictions in which the application of the facts to the law rests with the jury, the court cannot primarily declare that any particular concrete act or state of circumstances amounts to a breach of duty unless the law so expressly declares. This finding is left to the jury; but, if the law itself puts its finger on a particular thing, and says, ‘This is wrong,’ the court may also (for there is no question as to a fact which the law says exists) put its finger on that same thing and say, ‘This is negligence—negligence per se.’ This artificial distinction between negligence per se and negligence not per se respects, therefore, merely‘the method by which the existence of negligence is to be ascertained in particular instances.”
Not every violation of a legislative enactment will create civil liability. The rules for determining civil liability from the violation of a statute are thus set forth in Restatement of the Law, Torts, Negligence:
Ҥ 286. The violation of a legislative enactment by doing a prohibited act, or by failing to do a required act, makes the actor liable for an invasion of an interest of another if:
“(a) the intent of the enactment is exclusively or in part to protect an interest of the other as an individual; and
“(b) the interest invaded is one which the enactment is intended to protect; and,
“(c) where the enactment is intended to protect an interest from a particular hazard, the invasion of the interests results from that hazard; and,
“(d) the violation is a legal cause of the invasion, and the other has not so conducted himself as to disable himself from maintaining an action.”
It will frequently be a question of mixed law and fact whether the violation of a statute creates civil liability in a particular case.
“Two factors enter into the question of law and fact; first, whether the particular act has been performed or omitted; second, whether the performance or omission of such act was a legal duty, the first of which is a question of fact, the second, a question of law.” Thompson on Negligence, § 7408.
The instructions of the court will necessarily be adapted to the facts in testimony. Properly the trial court considered the only question of fact relative to plaintiff’s negligence in the case at bar for the jury’s determination was whether he had violated statutes properly to be invoked as material in the case. This was the trial court’s view, unobjected to.
How was the court to determine whether it was proper to submit the instruction that if either party had violated a statutory standard of conduct that he was guilty of negligence as a matter of law? Manifestly the judge must consider the statute and the facts in testimony and determine whether (a) the enactment is exclusively or in part to protect an interest of the parties in the case on trial, and (b) whether the interest claimed by the parties, or either of them, was one which the enactment is intended to protect.
How is the judge going to determine these factors except by drawing upon his knowledge of human experience and by the process of applying the test of whether the event which has happened is of the kind designed by the statute to be prevented and is the probable consequence of a violation of the statute? But it was properly submitted to the jury whether, if the jury found that the plaintiff violated a statute, such negligence caused or contributed to cause the collision. It being found by the jury that the violation of the statute did contribute to cause the collision, and the court having already determined that the statute was designed to prevent just that sort of collision, then using the same process the court was circumstanced to find that the quality of proximateness attached to the cause. The jury, having found that the violation of the statute contributed to cause the collision, would not be permitted to say that the quality of proximateness did not characterize the “cause” where the dereliction has been considered so- universally. wrongful as to attract the attention of the Legislature to the end that it has been enacted that such dereliction is a criminal act, and the court is able to see by applying the statute to the wrongful act that a civil liability has been created. In other words, the court, having found that if the plaintiff violated the statute, he was under the facts guilty of negligence as a matter of law, was by the same token able to say that the quality of proximateness attached to the cause.
Upon the record before us, it was the plain duty of the trial court to sustain defendant’s motion for judgment notwithstanding the verdict.
The failure of the minority to duly appreciate that the determination of “proximateness” as a characterization of “cause” requires the determination of the quality of conduct involved is we believe the reason for their inability to agree with us. Proximateness is qualitative and not quantitative.
The question is asked: “Is there, then, one rule for the plaintiff and another for the defendant in this character of case?” We go no further than to say that in the sanctuary of the law a violator of the law seeking relief from the consequences of his own act does not stand in high favor. The reason for this policy of the law has been variously stated as that the plaintiff is a joint tort-feasor seeking to recover indemnity for his own wrong, and that the plaintiff falls under the maxim “volenti non fit injuria,” and that he who comes into court must come with clean hands, and still another statement is that plaintiff has assumed die risk of his own wrongdoing. Mr. Street in his “Foundations of Legal Liability,” Vol. 1, page 163, says: “The idea involved in the maxim (volenti non fit injuria) is evidently a part of the same scheme of legal ideas as contributory negligence, and occupies an analogous place.”
The plaintiff is told that if he goes on the highways in the nighttime with his motor vehicle without taillights he will not only violate the penal code, but he will run the risk of collisions from overtaking cars. Notwithstanding this caution, he says: “I will drive on the highway at night without tail lights, and I will risk the consequences.” If a collision occurs to which his dereliction contributed, and he is injured, and comes into court seeking indemnity, he ought to be held to the duty of showing that his dereliction had nothing to do with the injury.
From these considerations arises the principle that if plaintiff’s negligence proximately contributes to his injury, the extent or degree of the contribution is immaterial. The reason for this rule is that there can be no apportionment of the damages, and not that the negligence of the plaintiff justifies or excuses the negligence of the defendant. It merely allows the defendant. to escape judgment because, from the nature of the case, it is unable to ascertain what share of the damage is due to his negligence. We think this is the reason which prompted the Circuit Court of Appeals of the Eighth Circuit, in Atchison, T. & S. F. R. Co. v. Merchants’ Live Stock Co., 293 F. 987, 990, to say: “It is, however, the general rule of law that one whose negligence directly contributes to his injury cannot recover damages of another whose negligence substantially contributes to cause it, even though the carelessness of the latter was the more proximate or the more effective cause of it.”
Among the cases cited in support of the foregoing is Spence v. El Paso & S. W. Co., 28 N.M. 132, 207 P. 579, 580.
In our neighboring state of Oklahoma, the Supreme Court in Hailey-Ola Coal Co. v. Morgan, 39 Okl. 71, 74, 134 P. 29, 30, said: “The law will not weigh or apportion the concurring negligence of a plaintiff and defendant. There can be no recovery by a plaintiff who has been guilty of contributory negligence. [Citing cases.] Hence follows, logically, the idea that in case of an injury proximately caused by want of ordinary care on both sides, however slight such want of care may be on the part of the injured party, in the law it is damnum absque injuria. In other words, the doctrine of comparative negligence has no place in our system.”
One other question requires consideration. It is suggested that since the evidence is not in the record, then, for all we know, the collision may have occurred under some of the conditions heretofore mentioned where the presence of taillights on plaintiff’s car would have been of no benefit to defendant in enabling him to avoid the collision. Aside from the answer Judge McClendon made to such a query in Hines v. Foreman, supra, that the finding itself eliminates such a question, we find another answer. In Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814, 815, it appears that plaintiff was driving in a buggy at night without lights. The defendant was charged with negligence and plaintiff was charged with negligence in traveling at night without lights. The defendant requested a ruling that the absence of a light on plaintiff’s vehicle was “prima facie evidence of contributory negligence.” This instruction was refused. . The plaintiff then requested a charge that “the fact that the plaintiff’s intestate was driving without a light is not negligence in itself,” and to this the court acceded. Judge Cardozo, writing the opinion for the court, said: “We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence in itself. Lights are intended for the guidance and protection of other travelers on the highway. Highway Law, § 329a. By the very terms of the hypothesis, to omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be preserved in life or limb, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform.”
Judge Cardozo, after discussing the difference between what is negligence in itself and what is merely evidence of negligence, went on to say:
“We think, however, that evidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals. [Citing cases.] If nothing else is shown to break the connection, we have a ^case, prima facie sufficient, of negligence contributing to the result. There may, indeed, be times when the lights on a highway are so many and so bright that lights on a wagon are superfluous. If that is so, it is for the offender to go forward with the evidence, and prove the illumination as a kind of substituted performance. The plaintiff asserts that she did so here. She says that the scene of the accident was illumined by moonlight, 'by an electric lamp, and by the lights of the approaching car. Her position is that, if the defendant did not see the buggy thus illumined, a jury might reasonably infer that he would not have seen it anyhow. We may doubt whether there is any evidence of illumination sufficient to sustain the jury in drawing such an inference ; but the decision of the case does not make it necessary to resolve the doubt, and so we leave it open. It is certain that they were not required to find that lights on the wagon were superfluous. They might reasonably have found the contrary. They ought, therefore, to have been informed what effect they were free to give, in that event, to the violation of the statute. They should have been told, not only that the omission of the lights was negligence, but that it was ‘prima facie evidence of con-tributary negligence’; i. e., that it was sufficient in itself unless its probative force was overcome (Thomas, J., in court below) to sustain a verdict that the decedent was at fault.”
During our research in this case we have been impressed by the large number of statements of the courts to the effect that the violation of a safety statute is contributory negligence, and by others that it is equivalent to contributory negligence.
“The weight of authority holds that a plaintiff’s breach of a criminal statute is equivalent to contributory negligence.” 27 Harvard Law Review 93. .
And see Padilla v. Atchison, etc., Railway Co., 16 N.M. 576, 120 P. 724, stating: “Failure on the part of deceased so to exercise due care amounts to contributory negligence"
And see Melkusch v. Victor American Fuel Co., 21 N.M. 396, 155 P. 727, 729, where it was said: “It is well settled that one whose injuries are the proximate result of his violation of a statute is, as a matter of law, guilty of contributory negligence which precludes a recovery for the negligence of another which contributed to the injury.”
We think that when the courts used that form of expression they meant more than that the violation of such a statute was negligence, and when they say that the violation of such a statute by the plaintiff was contributory negligence, there is embraced a presumption of causation with an absolute finding of negligence. It seems to us that Judge Cardozo thus appreciates the situation when he said: “To say that conduct is negligence is not to say that it is always contributory negligence.”
This is eminent authority for the suggestion that the phrase “contributory negligence” embraces more than the word “negligence.” We think the explanation is to be found in Judge Cardozo’s argument in Martin v. Herzog, supra, as follows: “We think, however, that evidence of a collision occurring more than an hour after sundown between a car and an unseen buggy, proceeding without lights, is evidence from which a causal connection may be inferred between the collision and the lack of signals.”
That is, as we have heretofore said in the case of the violation of such a safety statute as we here have under consideration, the “probable consequence” rule does the double duty of stamping the violation eventuating into a result sought by the statute to be avoided as negligence and also establishing prima facie causal relation between the collision and the neglect of duty by the plaintiff.
In Encyclopedia of Evidence, Vol. 2, p. 947, “Cause,” it is said: “Where a cause is shown which might produce an accident and an accident does happen, the presumption is-that the accident was due to such cause.” See, also, Corcoran v. Traction Co,, 15 N.M. 9, 13, 103 P. 645; Puget Sound Traction, Light & Power Co. v. Hunt, 223 F. 952 (C.C.A.)
In Vol. 8, Standard Encyclopedia of Evidence, “Negligence,” discussing presumptions, stating that there are none from mere fact of injury, it is stated at page. 870: “Where, however, an act or omission of the defendant that is negligent in itself as matter of law constitutes a part of the res gestae, it will be presumed that it was also a proximate cause thereof.”
It is suggested that though Justice Cardozo stated a just rule in Martin v. Herzog, that it is not applicable here because it is the law in this jurisdiction that contributory-negligence being an affirmative defense, the burden of proving it rests on the defendant. Padilla v. Atchison, etc., Railway Co., 16 N.M. 576, 120 P. 724. (This may be true and yet not applicable or decisive in the case at bar), whereas the statement of Justice Cardozo is in harmony with the practice said by some to prevail in New York, which casts upon the plaintiff the burden of establishing his freedom from negligence. In the first place, Mr. Blashfield, in § 6130, Vol. 9, of Cyclopedia of Automobile Law and Practice, Permanent Edition, does not so understand it, and, after' referring to the rule that the person seeking to recover on account of the negligent acts of another has the burden of proof to establish negligence and also causal relation of negligence to injury, takes up the question of “shifting of burden as to proximate cause” and says:
“If an automobile collision should occur on the highway, plaintiff could make out his case after proving the fact of collision, followed by injury, by showing that the speed was above the rate permitted by statute, and the burden would then be upon defendant to prove that the excessive speed was not the cause of the injury; and similarly, where the burden rests upon the defendant to show that negligence of the injured person in the premises was a proximate cause of the injury, the burden may shift.
“Thus, where one riding in a buggy operated without lights was injured in a collision with an automobile under circumstances warranting the inference that the lack of lights was the proximate cause of the collision, the burden was on plaintiff to show that the other lights on the highway, or other circumstances, were sufficient to rebut the presumption.” Citing Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814.
If the practice in New York casts upon the plaintiff the burden of establishing his freedom from negligence, there would seem to be no occasion to say that the burden shifts to the plaintiff from the defendant.
However that may be, discrimination must be exercised in using the terms “burden of proof” and “weight of evidence.” While burden of proof remains on the party affirming a fact in support of his case, and is not changed in any aspect of the case, except by legal presumption, the weight of evidence shifts from side to side in the progress of the trial, according to the nature and strength of the evidence offered in support or denial of the main fact to be established. During the progress of a trial it often appears that a party gives evidence tending to establish his allegation, sufficient, it may be, to establish it prima facie, and it is sometimes said that the burden is then shifted. All that is meant by this is, that there is a necessity for evidence to answer the prima facie case, or it will prevail; but the burden of maintaining the affirmative of the issue involved in the action is upon the party .alleging the fact which constitutes the issue, and this burden remains throughout the trial. See Jones on Evidence (2d Ed.) § 483.
In the sense that the burden rests upon the defendant of ultimately producing conviction, the statement in Padilla v. Atchison, etc., Railway Co., supra, is satisfactory. But where defendant introduces evidence sufficient to make out a prima facie case of contributory negligence by reason of the violation of a safety statute and it is plain to be seen that the injury or consequence was of the kind anticipated by the Legislature from a violation of the statute, it would seem practical and appropriate to require of the wrongdoer that he show excuse or justification for his conduct if that be material, and also that his unlawful act in no way contributed to his injury.
The general rule announced in Padilla v. Atchison, etc., Railway Co., supra, that the burden of showing contributory negligence is on defendant is based upon presumptions. The argument runs thus: It is the duty of a traveler upon a public road approaching a railway crossing to exercise care for his own safety; failure on the part of an injured person so to exercise due care amounts to contributory negligence on his part and will bar a recovery; in the absence of evidence to the contrary, there is a presumption that the' injured person stopped, looked, and listened; this presumption is founded on the law of nature, that is the instinct of self-preservation; in the absence of any evidence as to what the injured person did just prior to the accident, it is not to be presumed that he did not stop, look, and listen; therefore the burden of showing that the injured plaintiff did not exercise the care the law requires of him is on the defendant. See 45 C.J., Negligence, §§ 740 and 741.
When the defendant has discharged this burden, what then ? In Padilla v. Atchison, etc., Railway Co., supra, the court did not have under consideration the situation existing in the case at bar. It is doubtless proper at the commencement of a trial to clothe the plaintiff with the presumption of exercise of due care arising from the presumptions of right acting and that every person performs his duty and the instinct of self-preservation and the desire of men to avoid danger. The burden was on defendant to produce evidence to overcome this presumption. That much was required of the defendant in Martin v. Herzog, supra. As heretofore pointed out, we think upon reason and common sense and precedent that the inference which arises from the violation of the safety statute at the very moment of the plaintiff’s injury requires, as Justice Cardozo said in Martin v. Herzog, “the offender to go forward with the evidence,” and prove that his offense had no bearing upon the collision. In other words, the presumption that the plaintiff was in the exercise of due care having been overcome, the vitality of the rule has been spent, and does not carry over to other phases of the case where the reason for the rule does not exist. While the reasons for the rule that there is a presumption that a plaintiff has been in the exercise of due care are forceful, there is no presumption that his proven negligence eventuating into a result consistent therewith did not proximately contribute to the result. Considerations of common sense, logic, convenience, and precedent are to the contrary and strongly support the view that the negligence and a consistent result being shown, the presumption is that the result was proximate.
In the case at bar, however viewed, the defendant discharged the burden of establishing that the plaintiff was guilty of contributory negligence. The court charged the , jury that the violation of the saftey statute requiring a person operating an automobile on the highway in the nighttime to have the same equipped with proper taillights was guilty of negligence as a matter of law. The jury answering interrogatory (a) in the affirmative found the plaintiff to be guilty of contributory negligence. It further found the causal relation between the negligence and the collision. If the plaintiff brought forward any evidence to show that there were other lights on the highway or other circumstances which would render the absence of taillights immaterial, the jury evidently did not think such evidence produced conviction because they found that the absence of the taillight contributed to cause the injury. If there was any such evidence of an ex-cusatory nature, appellee has failed to bring it into the record.
In Blashfield’s Cyclopedia of Automobile Law and Practice (Permanent Ed.) § 6130, it is said: “The burden of producing evidence to show the causal relation between the negligence charged and the injury may shift during the trial. Proof of the violation of a law or ordinance, giving rise to the presumption that such violation proximately caused the injury, causes the burden to shift to the other party to overcome such presumption.” Citing Moore v. Hart, 171 Ky. 725, 188 S.W. 861.
Blashfield at § 6127 says: “While the plaintiff’s negligence may consist in the violation of a rule of the road embodied in a statute or ordinance, he may avoid the defense of contributory negligence by showing that his disobedience in no way contributed to his injury.” Citing Benson v. Anderson, 129 Wash. 19, 223 P. 1063, 1065.
The Oregon Supreme Court in Landis v. Wick, 57 P.(2d) 759, indicate that it has been the uniform practice in Washington to place the burden on the defendant of proving contributory negligence of the plaintiff if it is relied upon by defendant. Notwithstanding this, the Washington court in Benson v. Anderson, supra, a case in which the plaintiff was shown to be violating a statutory rule of the road at the time of the injury, held that the plaintiff could not therefore “recover for the injury he suffered while so violating the statute in the absence of proof showing that his act did not contribute to his injury.”
The court said:
“The Legislature has enacted certain ‘rules of the road’ for the government of the conduct of persons using the highways of the state, and has declared that it shall be the duty of every person to observe them. * * *
“In Johnson v. Heitman, 88 Wash. 595, 153 P. 331, we said that this court ‘is definitely committed to the rule that “a thing which is done in violation of positive law is in itself negligence,” in the absence of pleading and proof of such peculiar facts as would tend to justify the violation.’ * * *
“The statutory enactments regulating traffic upon the public highways are made to be obeyed. They are the outgrowth of necessity. On the observance of them depends the safety of the users of such highways. Failure to obey them not only endangers the safety of the person guilty of the disobedience, but it endangers the safety of others using them in a lawful manner. Courts, therefore, should not look lightly upon infractions of these regulations. One injured while in the act of disobedience of them should be compelled to show with clearness that his act in no way contributed to his injury.” See, also, Schick v. Jenevein, 145 La. 333, 82 So. 360.
We are distinctly in sympathy with the thought expressed in Wall v. Cotton et al., supra. Defendant was guilty of negligence in failing to have his car equipped with lights while operating same in the nighttime. On the other hand, the court said it was clear that plaintiff was himself guilty of negligence for a violation of the same statute violated by defendant, and that this negligence and violation proximately contributed to the injury to his property. The court further said:' “The lawful traveler has a right to assume that the entire width of the roadway is free from unlawful obstruction. So, while it is clear that defendant’s truck was being operated unlawfully and struck plaintiff’s car and as a proximate result injured it, it is equally clear that the injury would not have occurred if plaintiff had not been guilty of a violation of a similar statute which contributed proximately to the injury. Both parties were guilty of negligence and of a misdemeanor under the statute. Code 1923, § 3333. As a proximate result both parties were injured by having their cars smashed. They stand before the court ‘in pari delicti.’ Here the law finds them, and here the law leaves them.”
The jury having found a causal relation between the negligent act of plaintiff and the collision, and it appearing that the collision is a natural and probable result of the negligent act, and it conclusively appearing that the plaintiff ought to have foreseen consequences of that kind, then, as a matter of course, the cause was proximate. See Thurman v. Chandler, 125 Tex. 34, 81 S.W.(2d) 489.
In view of all of the foregoing, it is our conclusion that the judgment must be reversed and the cause remanded with direction to enter judgment for the defendant.
And it is so ordered.
HUDSPETH, C. J., concurs.