The court instructed the jury that "the burden of proof is upon the plaintiff to establish by a preponderance of the evidence the negatives of questions 1, 3, and 5." Question No. 5 reads:
"Was plaintiff guilty of contributory negligence in going upon the railroad crossing as and when he did, if you find that he did go upon the crossing? Answer `Yes' or `No.'"
Appellant excepted to the instruction "in placing the burden of proof upon the plaintiff to prove by a preponderance of the evidence that he was not guilty of contributory negligence in going upon the railroad crossing." The point made pertains to a rule of evidence as to the mode and manner of proving the competent facts and circumstances upon which a party refuses to establish the fact in dispute involved in an issue submitted to the court or to the jury for consideration. In an action of tort for negligence, the burden of proof is upon the plaintiff to establish the alleged negligence of the defendant by such quantum of evidence as the law demands in the case in which the issue arises. The obligation to establish the truth of the claim by a preponderance of the evidence rests throughout the trial upon the plaintiff. Railway Co. v. Foreman, 73 Tex. 311, 11 S.W. 326, 15 Am.St.Rep. 785; 22 C.J. § 21, p. 76; 16 Cyc. 932. If the defendant in such action relies upon the contributory negligence of the plaintiff as a defense, the burden of proof, in this state, is upon the defendant to establish it. Railway Co. v. Shieder, 88 Tex. 152, 30 S.W. 902, 28 L.R.A. 538.
Accordingly, a plaintiff has not made out a prima facie case within this rule such as to entitle him to a Judgment in case the facts stated in his petition or in case his own testimony or the undisputed facts of the case affirmatively establish contributory negligence on the part of the plaintiff. Sanches v. Railway Co., 88 Tex. 117, 30 S.W. 431, and other similar cases. It is very clear that, when it appears from the whole case or on the plaintiff's own showing that he has been guilty of negligence which, as a proximate cause, contributed to the injury, he cannot recover, and an instructed verdict should be granted. There is no open issue of fact for the jury to pass upon. But, when the evidence is all in and the case is submitted for determination, there can no longer be any question of burden of proof, so far as that term is concerned with the order of production of evidence. At this stage, if the proofs on behalf of the plaintiff are such that the court cannot declare contributory negligence as matter of law, the question of whether or not the plaintiff affirmatively appears to have been guilty of contributory negligence must go to the jury on all the facts adduced, to be determined, like any other question of fact, upon a preponderance of the evidence. Railway Co. v. Harris, 103 Tex. 422, 128 S.W. 897; Railway Co. v. Anglin, 99 Tex. 349, 89 S.W. 966, 2 L.R.A. (N. S.) 386; 1 Thompson on Neg. 406. In such case the plaintiff has not wholly failed to produce such quantum of evidence as the law demands in the case to make or meet a prima facie case of negligence proximately causing injury, and he is entitled to have the jury determine the truth of the claim. In the instant case the trial court reached the conclusion that the plaintiff's proofs were not such as to justify declaring the plaintiff to have been guilty of contributory negligence as matter of law. The court having so determined, it was error to specially instruct the jury that the burden of proof was upon the plaintiff to show himself free from contributory negligence. Railway Co. v. Shieder, supra; Dalwigh v. Railway Co. (Tex.Civ.App.) 42 S.W. 1009; Pares v. Railway Co. (Tex.Civ.App.)57 S.W. 301; Huber v. Railway Co. (Tex.Civ.App.) 113 S.W. 984.
The appellee answers the appeal by the contention that a peremptory instruction should have been given in its favor. In this respect we are not prepared to say in this appeal that the trial court's conclusion was entirely erroneous. We are not to be understood, however, as in anywise prejudging the merits of the case.
The judgment is reversed, and the cause is remanded for trial. *Page 885