dissenting.
T am persuaded that, in the majority opinion, too much stress is laid on the question of shifting the burden of proof, and too little regard had to the shifting -of the court from one position to another, and thus unsettling what, as it seems to me, should be accepted as a settled rule of remedial law in this state. Certainly if a long line of judicial decisions can settle a question, the one under consideration should be regarded as having been set at rest. The doctrine of stare decisis appears to me to be altogether ignored or at most to he given hut scant consideration. I do not especially object to the rule held to and announed in the majority opinion. I can very readily subscribe to it if the question were an open one. What I protest against is the overturning of so many cases deliberately decided, and by a unanimous court, beginning in the early history of the state’s jurisprudence, in order to establish a different rule regarding the merits of which there may exist some doubt. Stability and continuity in judicial decisions require our acceptance of the results worked out in the past by the laborious and zealous efforts of those who were, equally with us, striving to reach correct conclusions and establish sound rules and principles for the guidance of all. Unless these principles and rules, so announced, are so radically wrong as to be productive of more mischief by adhering to them than would result from their overthrow, they should remain undisturbed. Quoting from another, “The conservation and orderly development of our institutions rests on our acceptance of the results of the past, and their use as lights to guide our steps in the future. The fundamental conception of a judicial body is that of one hedged about by precedents *390which are binding- on the court, without regard, to the personality of its members.” The majority opinion and the one to which it adheres not only overrule the, two cases expressly mentioned but, in effect, overthrow a long line of decisions, the first of which is reported in the 18th volume of the Nebraska reports. The instruction which is condemned was in a case where negligence is alleged as tin* basis of recovery and is as follows:
“The defendant has also pleaded contributory negligence on the part of the plaintiff as a defense to this action. The burden of proving contributory negligence*, by a preponderance of the evidence, rests upon the defendant, and, unless the defendant has so proved it, this defense is of no avail; but if the plaintiff’s own testimony tends to show that she was guilty of any carelessness, which caused or aided in causing the injury complained of, then tin* burden of proof shifts, and it devolves upon the plaintiff to satisfy you, by a preponderance of the evidence, that sin* was not guilty of contributory negligence.”
It is not to be doubted that tin* (expression, “The burden of proof shifts,” is inapt and inaccurate. It does not say, however, the burden shifts during the progress of the trial. When considered in the light of the case as made and submitted, it says nothing more than, when the plaintiff’s own testimony tends to show that she was guilty of contributory negligence, then she assumes tin* burden of proving, by a preponderance of the evidence, that the defendant was guilty of the negligence* charged, and that she was not guilty of contributory negligence, and this has been the settled law in this state for years. Suppose the instruction had said, the. burden of proving contributory negligence was on the defendant, unless the. testimony of the plaintiff is of such a character as to justify tin* jury in finding that her own negligence contributed to the* injury. This would be stating the same proposition in another form. It would be a change in form but not in substance. The instruction can not be regarded as misleading or prejudicial, unless the rule heretofore an*391nounced is repudiated, as it is in the majority opinion. We do nof have to go far in order to find the reason of t he rule. And it is not opposed to any rule of law or logic. It is consistent with both. It .is an essential (dement in pleading negligence, say this court, to plead an injury as the proximate consequence of a specific, negligent act or omission of the defendant. Chicago, B. & Q. R. Co. v. Kellogg, 55 Neb. 748. If it is essential to aver that the plaintiff was without fault, where is the inconsistency in requiring him to prove the truth of the averment by a preponderance of the evidence, ('specially when, in making his case, he offers evidence tending to show that he was guilty of contributory negligence? In some jurisdictions it is held, and very properly, that a plaintiff in an action for negligence must, in all cases, allege and prove, not only that tin; defendant was guilty of the negligence charged, but also that the plaintiff acted with due care — the latter, of course, disproving contributory negligence. This is the rule of common law. This is the reason for requiring the plaintiff to allege that the injury suffered was without fault on his part. Other jurisdictions hold that contributory negligence is purely a matter of defense to be pleaded in the answer, and that the burden of establishing it always rests- upon the defendant. Why we should depart from the one position, held to for so long a period, in order to occupy the other, is beyond my comprehension. To be consistent, we ought also to overthrow the long established rule as to the pleadings to which I have adverted. The discussion in the majority opinion relative to the supposed confusion arising from the terms, “the burden of proof,” and, “the weight of evidence,” does not, in my judgment, help to elucidate matters. Evidence is not weighed in parcels like groceries or drugs. There is no practical way by Avhicli to determine where the weight of evidence rests at the different stages of the trial, unless it be of so conclusive a nature as to be ruled upon ás a matter of law. The jury does not weigh the evidence by *392piecemeal or in parcels. The evidence is weighed only after all has been submitted to the jury in support of, or to controvert, some issue of fact involved in the controversy. After all the evidence relating to any fact in issue has been submitted, it is for the jury to weigh it ami announce its verdict. In weighing the evidence, the court declares the rule as to who assumes the burden of proof, that is, which litigant must furnish a preponderance of the evidence on any given allegation of fact in dispute. And if the required preponderance of the evidence has not been furnished, such alleged fact must be resolved against the party upon whom the burden rests. Relative to the question of on whom rests the burden of proof as to contributory negligence, this court, in a well considered and exhaustive opinion, in which the authorities are reviewed and the conflict of decisions noted, has laid down a rule whereby it has occupied what may be termed middle ground as betrveen the rule, that the burden always rests on the plaintiff, and the contrary one, that it is purely a matter of defense. The rule as first announced is that, in an action for negligence, where the plaintiff can prove 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. City of Lincoln v. Walker, 18 Neb. 244. The corollary of the proposition is obvious, and it arises by the application of the rules of both law and logic. If the plaintiff in proving his case offers evidence tending to prove negligence on his part, then the burden of proving contributory negligence would not be on the defendant; and if it is not on the defendant, it having to rest somewhere, must necessarily fall on the plaintiff. This is what the court has said in the later case of Durrell v. Johnson, 31 Neb. 796. The judgment in that case was reversed, because the trial court did not do the very thing the trial court in the case at bar did do. In Durrell v. Johnson, the trial court instructed, the jury that, the defendant having alleged contributory negligence, the burden of proof was upon him to establish *393•the allegation by a preponderance of the evidence. This court held the instruction erroneous, and said: Where the testimony of the plaintiff is of such a character as to justify the jury in finding that his own negligence contributed to the injury, it is erroneous to instruct the jury that the burden of proof of such contributory negligence is on the defendant. It is therein held that the rule stated in City of Lincoln v. Walker, supra, does not apply, Avhere the plaintiff’s own testimony tends to show contributory negligence on his part. This court said the instruction given would have been unobjectionable if there had been added this qualification: “Unless you find from the plaintiff’s oavii testimony that he Avas guilty of contributory negligence.” It is manifest that the instruction, as thus qualified and approved by this court as a correct expression of Iuav, is substantially of the same purport as the one condemned in the case at bar. It thus appears that, the court has faced about, and is now condemning what it formerly approved. In Omaha v. Ayer, 32 Neb. 375, the rule announced in the Walker case, supra, was reaffirmed. It is observed in the opinion that there was not such evidence of contributory negligence contained in the testimony of the plaintiff as to throAV the burden of proving his contributory negligence upon the plaintiff. Of like import is Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 95, where it is held that, if the plaintiff proves his case Avitliout disclosing any negligence on the part of his intestate, contributory negligence is a matter of defense, and the burden of establishing it is on the defendant. The court therein say, the same point was considered by this court in the case of City of Lincoln v. Walker, 38 Neb. 244, Avhere, after a consideration of the conflicting authorities, it was ruled that, when the plaintiff makes out his case without showing negligence on his part, contributory negligence is a matter of defense, and the burden of establishing it is on the defendant. In Union Stock Yards Co. v. Conoyer, 38 Neb. 488, the rule announced in the Walker case was reaffirmed, as it was also in Omaha Street R. Co. *394v. Durall, 40 Neb. 29. In Chicago, B. & Q. R. Co. v. Putnam, 45 Neb. 440, it is said: Tbe plaintiff need not plead the particular precaution he toolc to avoid injury, and that the allegation that the injury was inflicted without fault on his part was sufficient.. It is, say the court, the' established law of this state that, whore the plaintiff proves his case without disclosing negligence on his part, contributory negligence is a matter of defense, the burden of proving which is on the defendant. The rule is reiterated in Omaha Street R. Co. v. Martin, 48 Neb. 65. Tn Chicago, B. & Q. R. Co. v. Featherly, 64 Neb. 323, following this long line of decisions, in an opinion concurred in by all the commissioners participating in the opinion, and approved by a unanimous court, an instruction was held erroneous and the cause reversed because, without qualification, the jury were instructed that the burden of proof was on .the defendant to show, by a preponderance of the evidence, the truth of its assertion that plaintiff’s intestate was negligent, and so helped to cause* his own injury. And hast of all, as late as March, 1903, by a like unanimous opinion concurred in by the commissioners and approved by the court, two instructions on the subject of the burden of proof on the question of contributory negligence were considered together and held to state the law correctly, which, when so considered, were substantially the same* as the one condemned in the case at bar. In one of the instructions the jury were told that, if the 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. New Omaha Thompson,-Houston Electric Light Co. v. Rombold, 68 Neb. 54. Such being the rule of law governing the question as to the burden of proof of contributory negligence, which has so often, for such length of time,- been affirmed and reaffirmed after the fullest consideration and deliberation by the unanimous action of the court, I can not believe that we *395are now justified in overturning what has been so firmly and repeatedly established as the law in this jurisdiction. The doctrine of stare decisis applies with full' force. “Those things which have been so often adjudged ought to rest in peace.”