The opinion of the court was delivered by
Smith, J.:
Plaintiff in error earnestly contends that the trial court erred in overruling its demurrer to the evidence for the reason that the testimony introduced by plaintiff below raised no presumption of negligence on the part of the railroad company or its servants in the operation of the train. It cites authority to the effect that if the accident occurred undexcircumstances which might be attributable to causes unavoidable on the part of the railroad company, [95]*95mere proof of plaintiff’s injury is insufficient to make a prima facie case of negligence against the carrier.
1. Presumption of negligence - burden of proof. We have carefully examined the cases cited, together with others involving this question, and conclude that the rule of evidence in cases of injury. to a passenger is in accord with the decision of this court in A. T. & S. F. Rld. Co. v. Elder, 57 Kan. 312, 316, 46 Pac. 311. An accident resulted in death. The deceased left a widow and next of kin surviving him. The court said:
“Under the pleadings and the allegations of negligence contained, in the petition, it devolved upon the plaintiff below in the first instance only to prove the derailment, the injury of the passenger thereby, that death occurred from the injury, and that the deceased left a widow or kindred surviving him ; and it then became incumbent upon the company, in order to escape liability, to show that the derailment resulted from inevitable accident or something against which no human prudence or foresight on the part of the company could provide. (S. K. Rly. Co. v. Walsh, 45 Kan. 653, 659, 26 Pac. 45, and cases cited; Mo. Pac. Rly. Co. v. Johnson, 55 id. 344, 345, 40 Pac. 641.)
If the testimony introduced on behalf of the plaintiff in such cases should develop that the injury resulted from an act of God, unavoidable casualty, or from causes not connected with the construction, operation or maintenance of the railroad, then the burden of proof would not shift to the defendant to account for the accident, for the explanation itself (made by the plaintiff) would exonerate the carrier from the charge of negligence. The gist of the action is want of care on the part of defendant. A presumption of negligence in such cases arises not from the fact of the injury alone, but from its cause or the [96]*96circumstances attending it; and if such circumstances as detailed in the testimony introduced by the plaintiff should show, for instance, that he was shot through a window by a person distant from the track, or that the train was struck by lightning, that he fell down while the train was standing still, or that the accident happened in some other manner wholly beyond the control of the carrier or its servants, there would be no presumption of negligence for the defendant to rebut, for the reason that the plaintiff had, in his account of the accident, disproved the charge of negligence made by him. The railroad company being held to the highest degree of care which human prudence or foresight can provide, it is sufficient in this class of cases to show prima facie that the injury was occasioned by the failure of some portion of the .machinery, appliances or means provided for the transportation of passengers, or any other thing which the carrier can and ought to control as a part of its duty to carry passengers safely. (Meier v. The Pennsylvania Railroad Co., 64 Pa. St. 225.) A presumption of negligence arises from the occurrence of an accident alone when it proceeds from an act of such character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or misconstruction of a thing over which the defendant has immediate control, and for the management or construction of which he is responsible. (Transportation Company v. Downer, 11 Wall. 129, 20 L. Ed. 160.)
In Gleason v. Virginia Midland Rld. Co. 140 U. S. 435, 444, 11 Sup. Ct. 862, 35 L. Ed. 463, this question was considered by the supreme court of the United States. The accident in that case occurred by reason of a landslide in a railway cut, caused by an ordi[97]*97nary fall of rain. It was held that' an injury to a passenger, caused by the train coming in contact with the earth which had fallen down upon the track, raised a presumption of negligence on the part of the railway company, and threw the burden of proof of showing that the slide was in fact the result of causes beyond the control of the railway company upon the latter. In passing on the question, the court said:
"The law is that the plaintiff must show negligence in the defendant. This is done prima facie by showing, if the plaintiff be a passenger, that the accident occurred. If that accident was in fact the result of causes beyond the defendant’s responsibility, or of the act of God, it is still none the less true that the plaintiff has made out his prima facie case. When he proves the occurrence of the accident, the defendant must answer that case from all the circumstances of exculpation, whether disclosed by one party or the other. They are its matter of defense. And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances.” (See, also, Law. Pres. Ev. 128.)
We think the plaintiff below, by the testimony offered in his behalf, brought the case within the established rule, and that when he rested, a prima facie charge of negligence had been made out, which the railway company was called on to meet in order to overcome the presumption against it.
2. Contributory negligence - question for jury. Nor can we hold, as a matter of law, that the plaintiff below was guilty of contributory negligence. This question was one for the jury. (A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 40 Pac. 919.) We cannot say, from the fact that plaintiff below leaned over toward the stove [98]*98to spit, that he was guilty of an act of negligence. This is not an uncommon thing to do. Railroads recognize the general use of tobacco, both for smoking and chewing, by running smoking-cars on all passenger-trains and by furnishing their coaches with cuspidors. Plaintiff was riding in a caboose attached to a freight-train, and it is not quite clear from the testimony what his position was immediately before he was injured, but it would seem that he had assumed a crouching position, with one hand on the seat to brace himself. In Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136, it was said:
“In an action to recover for personal injuries, where the defense is contributory negligence on the part of the plaintiff, the court cannot tr.’:e the case from the jury and determine as a matter of law that the plaintiff was negligent where the standard of care required of him was a subject upon which different opinions might be entertained, and where the facts shown and inferences to be drawn from them were such that reasonable minds might differ with respect to whether he had acted as a reasonably prudent man should have done under the circumstances.”
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The opinion of the court was delivered by
Smith, J.:
Plaintiff in error earnestly contends that the trial court erred in overruling its demurrer to the evidence for the reason that the testimony introduced by plaintiff below raised no presumption of negligence on the part of the railroad company or its servants in the operation of the train. It cites authority to the effect that if the accident occurred undexcircumstances which might be attributable to causes unavoidable on the part of the railroad company, [95]*95mere proof of plaintiff’s injury is insufficient to make a prima facie case of negligence against the carrier.
1. Presumption of negligence - burden of proof. We have carefully examined the cases cited, together with others involving this question, and conclude that the rule of evidence in cases of injury. to a passenger is in accord with the decision of this court in A. T. & S. F. Rld. Co. v. Elder, 57 Kan. 312, 316, 46 Pac. 311. An accident resulted in death. The deceased left a widow and next of kin surviving him. The court said:
“Under the pleadings and the allegations of negligence contained, in the petition, it devolved upon the plaintiff below in the first instance only to prove the derailment, the injury of the passenger thereby, that death occurred from the injury, and that the deceased left a widow or kindred surviving him ; and it then became incumbent upon the company, in order to escape liability, to show that the derailment resulted from inevitable accident or something against which no human prudence or foresight on the part of the company could provide. (S. K. Rly. Co. v. Walsh, 45 Kan. 653, 659, 26 Pac. 45, and cases cited; Mo. Pac. Rly. Co. v. Johnson, 55 id. 344, 345, 40 Pac. 641.)
If the testimony introduced on behalf of the plaintiff in such cases should develop that the injury resulted from an act of God, unavoidable casualty, or from causes not connected with the construction, operation or maintenance of the railroad, then the burden of proof would not shift to the defendant to account for the accident, for the explanation itself (made by the plaintiff) would exonerate the carrier from the charge of negligence. The gist of the action is want of care on the part of defendant. A presumption of negligence in such cases arises not from the fact of the injury alone, but from its cause or the [96]*96circumstances attending it; and if such circumstances as detailed in the testimony introduced by the plaintiff should show, for instance, that he was shot through a window by a person distant from the track, or that the train was struck by lightning, that he fell down while the train was standing still, or that the accident happened in some other manner wholly beyond the control of the carrier or its servants, there would be no presumption of negligence for the defendant to rebut, for the reason that the plaintiff had, in his account of the accident, disproved the charge of negligence made by him. The railroad company being held to the highest degree of care which human prudence or foresight can provide, it is sufficient in this class of cases to show prima facie that the injury was occasioned by the failure of some portion of the .machinery, appliances or means provided for the transportation of passengers, or any other thing which the carrier can and ought to control as a part of its duty to carry passengers safely. (Meier v. The Pennsylvania Railroad Co., 64 Pa. St. 225.) A presumption of negligence arises from the occurrence of an accident alone when it proceeds from an act of such character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or misconstruction of a thing over which the defendant has immediate control, and for the management or construction of which he is responsible. (Transportation Company v. Downer, 11 Wall. 129, 20 L. Ed. 160.)
In Gleason v. Virginia Midland Rld. Co. 140 U. S. 435, 444, 11 Sup. Ct. 862, 35 L. Ed. 463, this question was considered by the supreme court of the United States. The accident in that case occurred by reason of a landslide in a railway cut, caused by an ordi[97]*97nary fall of rain. It was held that' an injury to a passenger, caused by the train coming in contact with the earth which had fallen down upon the track, raised a presumption of negligence on the part of the railway company, and threw the burden of proof of showing that the slide was in fact the result of causes beyond the control of the railway company upon the latter. In passing on the question, the court said:
"The law is that the plaintiff must show negligence in the defendant. This is done prima facie by showing, if the plaintiff be a passenger, that the accident occurred. If that accident was in fact the result of causes beyond the defendant’s responsibility, or of the act of God, it is still none the less true that the plaintiff has made out his prima facie case. When he proves the occurrence of the accident, the defendant must answer that case from all the circumstances of exculpation, whether disclosed by one party or the other. They are its matter of defense. And it is for the jury to say, in the light of all the testimony, and under the instructions of the court, whether the relation of cause and effect did exist, as claimed by the defense, between the accident and the alleged exonerating circumstances.” (See, also, Law. Pres. Ev. 128.)
We think the plaintiff below, by the testimony offered in his behalf, brought the case within the established rule, and that when he rested, a prima facie charge of negligence had been made out, which the railway company was called on to meet in order to overcome the presumption against it.
2. Contributory negligence - question for jury. Nor can we hold, as a matter of law, that the plaintiff below was guilty of contributory negligence. This question was one for the jury. (A. T. & S. F. Rld. Co. v. Hughes, 55 Kan. 491, 40 Pac. 919.) We cannot say, from the fact that plaintiff below leaned over toward the stove [98]*98to spit, that he was guilty of an act of negligence. This is not an uncommon thing to do. Railroads recognize the general use of tobacco, both for smoking and chewing, by running smoking-cars on all passenger-trains and by furnishing their coaches with cuspidors. Plaintiff was riding in a caboose attached to a freight-train, and it is not quite clear from the testimony what his position was immediately before he was injured, but it would seem that he had assumed a crouching position, with one hand on the seat to brace himself. In Beaver v. A. T. & S. F. Rld. Co., 56 Kan. 514, 43 Pac. 1136, it was said:
“In an action to recover for personal injuries, where the defense is contributory negligence on the part of the plaintiff, the court cannot tr.’:e the case from the jury and determine as a matter of law that the plaintiff was negligent where the standard of care required of him was a subject upon which different opinions might be entertained, and where the facts shown and inferences to be drawn from them were such that reasonable minds might differ with respect to whether he had acted as a reasonably prudent man should have done under the circumstances.”
The degree of care required on the part of a railway company toward a passenger traveling in the caboose of a freight-train was considered in Mo. Pac. Rly. Co. v. Holcomb, 44 Kan. 332, 24 Pac. 467.
4. Personal injury - evidence of pain. Objection is made to the reception of testimony of professional and lay witnesses relating to complaints of plaintiff with regard to the existence of his pain and suffering communicated to them after the accident. Counsellor plaintiff below, in propounding questions upon this point, brought themselves strictly within the rule stated in A. T. & S. F. Rld. Co. v. Johns, 36 Kan. 769, 14 Pac. 237, and inquired concerning the presence of [99]*99existing pain, and the answers given were responsive to such questions. There was no error in the admission of such testimony.
Particular questions of fact were submitted to the jury on behalf of the defendant to be answered, and one of the instructions relative thereto was the following :
3 Inconsistent findings - erroneous instruction. “Your answers to these questions, if any, should be consistent each with the other, and should be answered, in the event that your verdict is for the plaintiff, in the light of the testimony, after due consideration thereof, and under the rules of law given you in this case.”
There was error in this direction to the jury. It was not their duty to reconcile the answer of any particular question of fact with another, but to answer each question in accordance with the preponderance of evidence bearing upon the fact involved in the interrogatory. (Brick Co. v. Zimmerman, 61 Kan. 750, 60 Pac. 1064, and cases cited.) This erroneous instruction compels a reversal of the cause, and, in view of another trial, we think that the following instruction is subject to criticism.
“The plea of carelessness and want of due care and caution on the part of the plaintiff is an affirmative plea tendered by the defendant, and, before it can avail itself of the relief in such plea sought, it must establish by the fair weight of the evidence the facts stated in such allegation and defense.”
5. Contributory negligence - erroneous instructions. By this direction the jury might have been misled into the belief that if the plaintiff, by testimony offered in his behalf, had shown con-tributary negligence upon his part, the same could not avail the defendant, because the fact of such contributory negligence was not [100]*100established by the company. A similar instruction was passed on and criticized in Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819.
Again, the court instructed the jury that if they found that the plaintiff, by reason of his carelessness and negligence, as alleged by the defendant in its answer, occasioned the injury, then there could be no recovery. In the answer it was alleged that the injury was occasioned wholly by the plaintiff’s own carelessness and negligence. It would thus follow from the instruction that the plaintiff might nevertheless recover, although his injury was occasioned partly through his own negligence. The instruction was misleading.
The judgment of the court below will be reversed and a new trial ordered.