The following opinion on rehearing Avas filed January 15, 1905. Judgment of reversal adhered to:
Letton, C.At the argument upon rehearing, our attention has been called to the decisions of this court in Chicago, B. & Q. R. Co. v. Featherly, 64 Neb. 323, and New Omaha Thompson-Houston Electric Light Co. v. Rombold, 68 Neb. 54, 71. In the Featherly case the jury were instructed:
“The establishment of negligence on the part of defendant, by a preponderance of the evidence, is necessary before; you can find any Arerdict for plaintiff, in any event. If you find there was such negligence on the part of the defendant, then the burden of proof is on the defendant to show, by a preponderance of the evidence, the truth of its assertion that John Raley was negligent, and so helped to cause his oavu injury.”
This instruction was held erroneous because the facts shoAved that the negligence of the deceased directly contributed to the injury, and it is said in the opinion:
“It is the settled rule in this state that, in an action for damages resulting from the alleged negligence of the defendant, AAfhen the testimony on behalf of the plaintiff is such as to justify a finding that his own negligence contributed to the injury complained of, the burden of proof' is on the plaintiff to sIioav the absence of such negligence on his part.” Citing Durrell v. Johnson, 31 Neb. 790; Union *386Stock Yards Co. v. Conoyer, 41 Neb. 617; Omaha Street R. Co. v. Martin, 48 Neb. 65.
The ease was reversed upon the ground that the evidence, on the part of the plaintiff justified a finding' that his own negligence contributed to the injury, and that therefore tin» .burden of proof was on him to show the absence, of such negligence.
In the Burrell case it is held:
“The rule stated in City of Lincoln v. Walker, 18 Neb. 244, that where the plaintiff has proved his case with on 1 disclosing any negligence on his part, the burden of proving contributory negligence is on the defendant, does not apply where the plaintiff’s own testimony tends to show contributory "negligence.” And the following instruction was held erroneous:
“The burden of proof in this action is upon the plaintiff to establish, by competent evidence, every material allegation of his petition. And tin» defendant, in his answer having alleged contributory negligence on the part of the plaintiff, the burden of proof is upon the defendant to establish this allegation by a preponderance of the evidence.” The reason given being that the plaintiff had stated facts in his testimony from which the jury could find that his own negligence had contributed to the injury. The court further say that, if the qualification, “unless you find from the plaintiff’s own testimony that he was guilty of contributory negligence,” had been added to the instruction, it would have been proper. Tt will be seen that this case affords no support to tin doctrine that the burden of proof shifts.
Union Stock Yards Co. v. Conoyer, 41 Neb. 617, Omaha Street R. Co. v. Martin, 48 Neb. 65, and Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95, merely hold that, whore the i>laintiff proves his case, without disclosing any negligence on his part, contributory negligence is a matter of defense, the burden ,of proving it being on the defendant. Bo these cases are not in point as to shifting of burden.
*387In New Omaha Thompson-Houston Electric Light Co. v. Rombold, 68 Neb. 54, the jury were instructed:
“Neither negligence nor contributory negligence can be presumed. Whoever alleges that another was guilty of negligence or contributory negligence must establish it by a preponderance of the evidence, or fail in his action or defense.” The court, say:
“It is claimed that this omits a feature present in this case, namely, that a party’s own evidence may show contributory negligence. But by instruction No. 11. the court-told the jury: ‘If plaintiff’s own testimony tends to show that he was guilty of carelessness which caused or aided in causing his injuries, then the burden shifts and it devolves upon the plaintiff to satisfy you by a preponderance of the evidence that he was not guilty of contributory negligence.” The court continue: “It seems to be conceded that if these were in one instruction they won hi together correctly state the law. * * * If their effect, when so taken together, is to correctly submit the issue of contributory negligence, the placing of them in separate paragraphs can hardly have been prejudicial.” It will be observed that the court does not pass upon tin» point now under consideration, but takes it as conceded that the law is correctly stated, hence, this case can hardly be said to announce the doctrine.
From a consideration of these cases, it will be seen that, while it is the settled law in this state that, where the plaintiff malees out his case without disclosing any contributory negligence on his part, the burden of proof is upon the defendant to establish that the plaintiff has been guilty of negligence, still, in only two decisions has it been said that, where the testimony on behalf of the plaintiff is such as to justify a finding that his own negligence contributed to the injury, the burden of proof shifts to the plaintiff to show the absence of such negligence on his part, and in one of these cases the opinion states the point was conceded by the parties..
There has been much confusion caused by a failure to *388distinguish between the burden of proof and the weight of evidence. The burden of proof is always upon the party asserting a fact as the basis of his action or defense, and it never shifts during the progress of the trial. The weight of evidence, however, may change according to the necessities of the case in overcoming the evidence introduced by the opposite party. In an action for negligence, where the plaintiff has disclosed facts conclusively showing contributory negligence on his part, he has made no case, and the defendant is entitled to a peremptory instruction at the close of the plaintiff’s case. If, however, the facts disclosed by the plaintiff, Avhile tending to show contributory negligence, are not so clear that different minds can not well differ upon the proposition, then the defendant must produce his evidence. If he has pleaded contributory negligence as a defense, the burden is upon him to establish it. To controvert the evidence pi'oduced by the de-defendant, together with the facts tending to show contributory negligence which were shown by the plaintiff himself, the plaintiff must furnish sufficient evidence to overcome the weight of the defendant’s evidence, as well as that which was disclosed by him tending to show such negligence on his part. In doing this, however, the burden of proof does not shift. The only duty imposed upon the plaintiff in such case is to overcome the weight of evidence, which is then against him upon this point. It is immaterial whether the evidence was furnished partly by himself or all by the defendant; it is a part of the affirmative defense pleaded by defendant, and which the. plaintiff must furnish sufficient evidence to balance or overcome.
The cases of Chicago, B. & Q. R. Co. v. Featherly, 64 Neb. 323, and New Omaha Thompson-Houston Electric Light Co. v. Rombold, 68 Neb. 54, 71, are disapproved in so far as opi>osed to the doctrine in this case.
For these reasons, we recommend the former decision be adhered to.
Ajiks and Oudham, CO., concur.*389By the Court:. For tlie reasons stated in the foregoing opinion, the former judgment of this court is adhered to.
Judgment or reversal adhered to.