A re-argument of this case was had upon petitions filed by both parties.
Respondent contends that the instruction that "The law . . . will presume, prima facie, that a person who has suffered death by accident was, at the time, in the exercise of ordinary care and diligence," was not prejudicial error for the reason that the court at the time of *Page 658 giving the instruction stated to the jury, "This is, however, a rebuttable presumption and may be overcome by proof that he was negligent." The instruction was taken from the case of Kunkel v. Minneapolis, St. P. S. Ste. M.R. Co. 18 N.D. 367, 121 N.W. 830; but in that case there were no witnesses to the accident, and that case cites, relies upon and quotes at length from the case of Baltimore P.R. Co. v. Landrigan, 191 U.S. 461,48 L. ed. 262, 24 S. Ct. 137. In this latter case, like the North Dakota case, there were no eyewitnesses and the court said: "There was no error in instructing the jury that in the absence of evidence to the contrary, there was a presumption that the deceased stopped, looked and listened. The law was so declared in Texas P.R. Co. v. Gentry, 163 U.S. 353, 366, 41 L. ed. 186, 192,16 S. Ct. 1104." In the syllabus the rule is laid down as follows: "In the absence of evidence to the contrary there is a presumption that one who was killed while crossing a railroad track at night stopped, looked and listened before attempting to cross the track." The rule as stated in the North Dakota case and in the Landrigan case, namely, the presumption obtains in the absence of other testimony is in line with the great weight of authority.
Babbitt on Motor Vehicle Law, 4th ed. p. 1608, § 2223, states the rule as follows: "If the circumstances of an automobile collision are fully testified to, the jury should determine the cause on the testimony, not on the presumption that one party obeyed the law." Tyson v. Burton, 110 Cal. App. 428, 294 P. 750; Wilson v. Grace, 273 Mass. 146, 173 N.E. 524. "In the absence of evidence as to the circumstances attending the accident, one who is injured in his person or property in a traffic accident, through the negligence of another in the operation of a motor vehicle upon the highway or of a vehicle moving upon tracks, will be presumed to have used due care for his own safety." 9 Blashfield, Cyc. of Auto. Law (Permanent Ed.) § 6051, p. 323; Abood v. Turner (C.C.A. 3d) 72 F.2d 880. "Such presumption, however, disappears in the presence of evidence on the issue of due care." 9 Blashfield, Cyc. of Auto. Law (Perm. Ed.) § 6051, p. 324; Hughes v. Torregrossa, 278 Mass. 530, 180 N.E. 304; Austin v. Eastern Massachusetts Street R. Co. 269 Mass. 420,169 N.E. 484; Booth v. Frankenstein, 209 Wis. 362, 245 N.W. 191. The presumption does not obtain *Page 659 where the facts surrounding the killing are disclosed by credible evidence. Pomeroy v. Dykema, 256 Mich. 100, 239 N.W. 342; Russo v. Grand Rapids, 255 Mich. 474, 238 N.W. 273; Richardson v. Williams, 249 Mich. 350, 228 N.W. 766; Fenn v. Mills, 243 Mich. 634, 220 N.W. 770. The presumption ceases when evidence is produced bearing on the question. Hughes v. Torregrossa,278 Mass. 530, 180 N.E. 304; DeLannoy v. Grammatikos, 126 Cal. App. 79, 14 P.2d 542; Blodget v. Preston, 118 Cal. App. 297,5 P.2d 25.
In the instant case the principal witness for the plaintiff and the defendant testified that they saw Hausken all the time he was crossing the street. They saw him at the time and after the horn was sounded, and they agree on his conduct during all of that time. In fact, both parties offered testimony, without objection, for the purpose of establishing the conduct of Hausken during all of that time. Without any reference to this undisputed testimony the court instructed the jury that "The law . . . will presume, . . . that a person who has suffered death by accident was, at the time, in the exercise of ordinary care and diligence, and this presumption is not overcome by the mere fact of the accident," and he placed the burden upon the defendant to overcome this presumption when he stated that it was "a rebuttable presumption and may be overcome by proof that he (Hausken) was negligent." This instruction on the evidence in this case was prejudicial error.
The defendant assigns the refusal to give the following instruction as error, namely: "Under the undisputed facts here I charge you that Mr. Hausken, plaintiff's husband, was negligent in failing to observe the approach of the car driven by Mr. Coman and if this negligence contributed in any degree, even the smallest, to the proximate cause of his injury, then plaintiff cannot recover a verdict here even if you should find that the defendant Coman was also negligent and your verdict should be in favor of the defendants."
The trial judge refused to give this instruction. He states the contentions of the parties as shown by the pleadings, and that "The defendant alleges contributory negligence on the part of Hans Jacob Hausken, that is, they claim that Hans Jacob Hausken was guilty of contributory negligence, or negligent acts himself which contributed to and was the proximate cause of the accident." He then defines contributory *Page 660 negligence; but gives no instruction on the subject of contributory negligence as applied to the facts in the case. Near the close of the instructions he states, "If you fail to find negligence on the part of the defendant or if you find from the evidence that this accident was caused by and through the negligence of the plaintiff's husband, and thus his negligence was the proximate cause of the injury then in that event your verdict will be for the defendant.
"If on the other hand, as I have already indicated, if you find that this accident was caused through the negligence of the defendant, and that his negligence, and not the plaintiff's husband's, was the proximate cause of this accident, and injury, then you will return your verdict for the plaintiff."
In this instruction the jury is plainly told that before they can find for the defendant they must find that there was no negligence on the part of the defendant, or if they found from the evidence that the accident was caused through the negligence of plaintiff's husband and his negligence was the proximate cause of the injury, then their verdict should be for the defendant. In such case the defendant would have to be free from negligence or the negligence of plaintiff's husband would have to be the proximate cause of the accident. The error is not cured by the statement which follows, namely: "If you find that this accident was caused through the negligence of the defendant, and his negligence, and not the plaintiff's husband's, was the proximate cause of this accident, and injury, then you will return your verdict for the plaintiff."
Nowhere does he state that if the jury found that the plaintiff's husband was negligent and that his negligence contributed in any degree as a proximate cause of the accident that they must find for the defendant.
In the case of Clark v. Feldman, 57 N.D. 741, 748,224 N.W. 167, this court said: "We are of the opinion that a general instruction on the subjects of the negligence and contributory negligence, without a further instruction defining the rights of the parties as they existed under the law then and now in force, as quoted above, was prejudicial in that such instruction did not give to the jury an adequate basis upon which to determine the reasonableness of the conduct of the parties affected." Continuing the court said in the Clark v. Feldman Case, supra, *Page 661 "The rule is `that whenever the plaintiff's case shows any want of ordinary care under the circumstances, even the slightest, contributing in any degree, even the smallest, as a proximatecause of the injury for which he brings his action, his right to recover is thereby destroyed.'" The trial judge was asked for an instruction on contributory negligence and the language in that instruction was taken from the case of Clark v. Feldman, supra. The instruction was refused and no instruction was given to cover contributory negligence as applied to the facts. The question of the contributory negligence of plaintiff's husband was an issue in the case and the defendant was entitled to an instruction on that issue, and the failure to give the instruction was clearly prejudicial error.
On the question of the sounding of the horn appellants cite and rely upon a Kentucky case. Kentucky has not the Uniform Motor Vehicle Act; but § 2739g28, Kentucky statutes, relating to horns, provides that, "Every automobile and bicycle, when in use on a public highway, shall be equipped with a horn, bell or other device . . . and every person operating an automobile or bicycle shall sound said horn or other sound device whenever necessary as a warning of the approach of such vehicle to pedestrians, or other vehicles, but shall not sound said horn or sound device unnecessarily." In construing this statute the court, in the case of United Casket Co. v. Reeves, 206 Ky. 581, 267 S.W. 1108, said: "It may be conceded that the statute imposes on the person operating the machine the duty to sound the horn or other device only when it is necessary to warn pedestrians and other vehicles of the approach of the machine, and that, as a general rule, the question of necessity is one of fact for the jury, but in this case the driver admits that he saw plaintiff and her little brother out in the street playing with a dog, and the evidence shows that the dog first crossed over in front of the truck, then the boy, and that he was followed by plaintiff, who was about 10 feet behind him. In view of these circumstances, the court did not err in holding as a matter of law that it was the duty of the driver of the truck to give warning of its approach to pedestrians whom he saw, or, in the exercise of ordinary care, should have seen, crossing, or about to cross, in front of the truck."
Now, in the instant case, Hausken had got outside of the lane the defendant was traveling in and was continuing on across the street *Page 662 when he was frightened by the sounding of the defendant's horn. If he had been crossing the other way and going towards and in front of defendant's automobile, like the plaintiff in the Kentucky case, we could say, as the Kentucky court said, that as a matter of law the sounding of the horn was a necessary, reasonable warning; but in the instant case it was a question for the jury.
We do say in the opinion "If the jury should find that the negligence of Hausken in crossing the street created the emergency and contributed to the injury then the plaintiff would not be entitled to the emergency instruction." As applied to the facts in this case it is more accurate to state — If the jury should find that the negligence of Hausken after the blowing of the horn by the defendant created the emergency the plaintiff would not be entitled to the emergency instruction. It is well settled that no person is entitled to an emergency instruction when his own negligence created the emergency.
If, in another trial, there is evidence supporting the doctrine of discovered peril or the last clear chance, that question should be submitted to the jury under proper instructions.
CHRISTIANSON, MORRIS and NUESSLE, JJ., concur.