— We can not say there was no evidence in this case tending to show contributory negligence on the part of the plaintiff. Hence we hold the Circuit Court was justified in submitting that question to the jury.
The first and second charges asked by plaintiff were rightly refused. They ignored the question of contributory negligence, upon which there was some testimony. Nor do we think the third charge of plaintiff should have been given. It is not shown any officer or employee of the railroad had any knowledge that plaintiff had taken a dangerous position in the “ caboose,” nor indeed is it shown there was any officer or employee in the car. Persons entering the “caboose” would be apt to observe whether or not it was attached to the train ; and if there be danger in standing near an open side door in a car, when the train is starting, or in motion, it is not an unreasonable presumption, that persons of ordinary prudence are aware of it. In transitions from rest to motion, or from motion to rest, there is ordinarily some disturbance of the equilibrium, the result of inertia. This is common knowledge.
In the ninth charge given at the instance of the defendant the Circuit Court erred. True, before plaintiff could recover, it was incumbent on him to satisfy the jury that the defendant, his servants or agents, had been guilty of fault or negligence, and that he, plaintiff, had been thereby damaged. It was not his duty to prove that this damage had been done through no want of reasonable care on his part. Nor was it necessary that the jury should, by their verdict, affirm that plaintiff had not contributed to the injury. Contributory negligence is in its nature defensive, the disproof of which does not rest on plaintiff, unless in rebuttal of defensive testimony tending to establish it. Like the defense of payment, or set-off, when pleaded, a general verdict for the plaintiff is simply an assertion, or finding, that the defense had not been proved. The error of the charge is, that it misplaced the onus, in the matter of contributory negligence. — Ind. & St. L. R. R. Co. v. Horst, 93 U. S. 291.
The sixth charge given is also subject to criticism. “Contributed in any way to the happening of the injury,” is prob*339ably misleading. To come within the rule, plaintiff’s negligence must contribute proximately to the injury inflicted.
Reversed and remanded.