The gist of this action is negligence. If the death of the plaintiff’s husband, William T. Davis, was not caused by the negligence of the defendant company, the plaintiff cannot recover. The negligence of the defendant’s agent, the motorman in charge of the car, 'would, if proved, be the negligence of the defendant company.”
The burden of proving negligence rests upon the party by 'whom it is alleged. In the absence of sufficient evidence to the contrary, the legal presumption is that neither the defendant nor the plaintiff’s husband, Davis, was guilty of negligence. But this presumption ceases when overcome by evidence from which the jury might reasonably infer that the party was guilty of negligence.
There is no evidence whatever that the car was not equipped with proper appliances, or that the car or any of its appliances were defective or out of order.
It is clear from the evidence that there was no negligence whatever on the part of the defendant up to the time when Davis went upon, or was about to go upon the track. The gong was sounded when the car was near the northerly crossing of Third Street and was moving slowly from that point until it struck Davis a few feet south of the southerly crossing of said street. The plaintiff claims that the motorman was guilty of negligence in that he did not stop the car after he saw Davis or by the exercise of proper diligence might have seen him in a dangerous position and before he was crushed beneath the car. There is no direct evidence that in that interval the motorman did not do all that could be reasonably required of him under the circumstances. It does not appear from the evidence nor has it been suggested that there *257was any proper mode of stopping the ear at that time but by the application of the brakes.
The evidence of two of the plaintiff’s witnesses, Grady and Taylor, is to the effect that the motorman, as soon as he discovered Davis in a dangerous position, applied the brake and did all he could to stop the car and avoid injury to him and there is no direct evidence to the contrary.
The plaintiff insists that negligence on the part of the motorman should be inferred from the fact that the car did not stop within the distance which certain expert witnesses have testified it could have been stopped, but we do not think that such an inference is justified in view of the direct evidence as to what the motorman did in fact do to stop the car.
We are therefore of the opinion that there is no evidence from which negligence on the part of the defendant company could be reasonably inferred by the jury.
The evidence of negligence on the part of Davis is full and conclusive. After the gong had sounded in due time, and while the car was proceeding at a very moderate speed, he, in the language of the witness Grady “ stepped deliberately in front of the car.” This was when the car was very close upon him. The interval of time between his thus stepping in front of the car and his being struck by the car was very brief. His negligence in stepping in front of the car was a part of the continuous transaction which terminated in his death.
We are clearly of the opinion that the contributory negligence of Davis was of such a character as to defeat the plaintiff’s right of recovery.
We are always reluctant to withdraw a case from the consideration of the jury, but in a proper case, it is our duty to do so.
In this case we would be obliged to set aside a verdict for the plaintiff, as not warranted by the evidence, and'we are therefore of the opinion that a nonsuit should be entered.
Mr. Knoioles: If the Court please, we decline to take a non-suit.
*258Spruance, J.,charging the jury:
Gentlemen of the jury:—For. the reasons which have just been stated in your hearing, we are of opinion that a nonsuit should be entered. The plaintiff, as is her right, declines to take a nonsuit, which, in effect, is a request that the verdict of the jury shall be taken.
For the reasons assigned upon granting the motion for a non-suit, we now instruct you to find a verdict for the defendant.
Verdict for defendant.