delivered the opinion of the court, November 4th 1875.
When the plaintiffs below closed their evidence, they had a perfect primá facie case to go to the jury. They had given evidence of the negligence of the defendants, and no contributory negligence of the deceased appeared. The presumption of law was that he had done all that a prudent man would do under the circumstances to preserve his own life, and that he had stopped and looked and listened : Penna. Railroad Co. v. Weber, 26 P. F. Smith 157. The onus of proving contributory negligence was thus clearly cast upon the defendants. “ It is true,” says Mr. Justice Williams, “that when the plaintiff’s own evidence discloses contributory negligence there can be no recovery; but if it does not, the burden is on the defendant to disprove care; and in such case the question of negligence is for the jury.” ' It is clear, then, that there was error in the binding direction given by the learned judge to the jury to find for the defendants. The testimony of one witness that Jacob Weiss did not stop, and that he could have seen the train if he had looked, did not justify the court in taking the case from the jury. ' The fact that the horse the deceased was driving became frightened and unmanageable a short distance from the railroad, if the animal was a gentle one, and was frightened through the negligence of the defendants, and being beyond the control of the deceased, rushed on the track, was an important element bearing upon the case.
The question of concurring negligence in the deceased, under all the circumstances of the case, should have been submitted to the jury.
Judgment reversed and venire facias de novo awarded.