dissenting.
This case is before us the second time, having been reported in 124 N. C., 302.
As the jury has found the defendant guilty of negligence, and the defendant has not appealed, we need not consider that phase of the case.
The contributory negligence of the intestate, with the evidence bearing thereon and the instructions relating thereto, is alone before us. The general construction of The wharf, platform and apron not set out in the former opinion.
The witness Langley testified that he was familiar with the locality, having worked there at one time, and that he went there immediately after the accident. He then fully described the condition of the apron; how it was constructed *324and used; the length, breadth and thickness of the plank composing it; how and where it was broken; and its general appearance, both before and after the accident. He further stated that he had known the intestate for twenty years; that they usually worked together; that he saw him just before he was drowned, and saw his body when it was taken out of the river. All this was of his own personal knowledge.
He was then asked by the plaintiff: “If this plank of the apron had been sound, and not cedar-hearted or rotten, could a man of Cogdell’s weight and size have stood on it with safety and thrown off the lump coal or fallen on it from the top of the car without its breaking under him ?” This question was excluded upon objection of the defendant. In such-exclusion I think there was error. The plain object of the question was to show that it Was not contributory negligence for a man of ordinary prudence to trust his weight to an apron which would have been entirely safe but for a hidden defect which he had no means of ascertaining. This is not expert testimony. It is the conclusion of the witness as to a matter of common knowledge; based upon facts within his personal observation immediately after the accident. Therefore, I think it comes within the rule laid down in State v. Reitz, 83 N. C., 634, where this Court, by Ashe, T., says: “The first exception to the admissibility of evidence was to the admission of the testimony of a witness who testified it was his best opinion that certain tracks found near the site of the burnt building were those of the prisoner. The reception of this evidence was objected to on the ground that the witness was not an expert. It is not necessary that a witness should be an expert to testify to the identification of tracks. The correspondence between boots and footprints is a matter requiring no peculiar knowledge to- judge of, and as to which any person who has seen both may testify. His testimony in such a case can amount to nothing more than his opinion *325as to tbe correspondence. Though, the opinions of witnesses are, in general, not evidence, yet on certain subjects some classes of witnesses, as, for instance, experts, 'may express their opinions; and on certain other subjects any competent-witness may express his opinion or belief. * * * The bare opinion of a witness as to- the identity of the tracks should have no weight with a jury; but when a witness gives his reasons for entertaining the opinion, the whole of the testimony should be allowed to go to the jury for them to say whether the grounds of the opinion are reasonable and satisfactory.” This case is evidently not in conflict. with Phifer v. Ry., 122 N. C., 940, nor intended to be overruled thereby, as in that case this Court says, on page 942: “We have no direct authority in our own Reports on the question raised here.” The Court, stating the point involved, further says, on page 941: “It seems to us that whether the plaintiff was careful was the very question which the jury were impanelled to determine, the defendant having pleaded contributory negligence and introduced testimony tending to prove it.” Iu the later case of Burney v. Allen, 127 N. C., 476, it was held competent, upon an issue of devismit vel non, for a witness to give his opinion that, from his personal knowledge of the room and the location of the furniture, the testator could have seen the subscribing witnesses as they signed the will, if the testator was lying in the position testified to by other witnesses on the trial. This Court says, on page 479: “This is rather the statement of a physical fact than the expression of a theoretical opinion, and seems clearly to come within the rule laid down in Arrowood v. Railroad, 126 N. C., 629, 632.”
In the case at bar, the safety of the apron was not the essential fact at issue, but was in the nature of a circumstance or relative fact, tending to prove or disprove the principal] fact of contributory negligence. 1 G-reenleaf Ev., Secs. 440, 440a. Of the same general nature was the defendant’s testi*326mony as to tbe intoxication of the intestate. Witnesses for the defendant testified that they thought the intestate was drunk, bnt none of them saw him drinking and some of them did not even give any reasons for their opinion. This, however, does not appear to have been excepted to.
The general rule is that the opinions of witnesses are not admissible, bnt there are many exceptions to this rule, both as to expert and non-expert testimony, arising from necessity and the increasing tendency of modern Courts to keep in view rather the ascertainment of the truth than the mere exclusion of error in the admission of evidence.
A non-expert witness was permitted to give his opinion ir» the following cases, among others: As to insanity, in Clary v. Clary, 24 N. C., 78; Barker v. Pope, 91 N. C., 165; McRae, v. Malloy, 93 N. C., 154; State v. Coley, 114 N. C., 879; Smith v. Smith, 117 N. C., 326. As to the presence of negro, blood, in Hopkins v. Bowers, 111 N. C., 175; Hare v, Bd. Education, 113 N. C., 9. Under* tire circumstances of this case, I think the question was competent.
There are a large number of exceptions; the' majority of which refer to the first and third issues, and are therefore not essential. Of those referring to the second issue, some come under the rule herein laid down and are governed thereby; of the others, many may not occur on a second trial, and need not be now discussed.
I think that the issue as to contributory negligence was properly submitted; but there is one exception to the charge, relating thereto that should be sustained.
The plaintiff requested the Court to charge: “That the law presumes that a person found dead and killed by the alleged negligence of another, has exercised due care himself.” This instruction should have been substantially given, but was refused. In lieu thereof, the Court charged as follows: “An inference arises from the instinct of self-preservation *327that a person killed bas exercised due care himself.” There is an essential difference between “inference” and “presump* tion.” An inference may be drawn from almost any competent evidence, bnt a presumption carries with it the burden of proof. No one saw the intestate fall, and there is no direct evidence, positive or circumstantial, tending to' prove contributory negligence. It is true there is evidence pro and con as to the alleged intoxication of the intestate; bnt intoxication is not contributory negligence per se, and becomes so only when it directly contributes in causing the injury. Of this there was no evidence. The most that can be said is that the intoxication of the intestate, if believed by the jury, was a mere circumstance from which contributory negligence1 might possibly be inferred. Whether such a possible inference, of whose existence and weight the jury alone could determine, was sufficient to overcome the legal presumption against the existence of contributory negligence, was a question for the jury; but they should have been instructed that there was such a presumption.
Whatever doubt may have formerly existed as to the burder! of proving contributory negligence, was completely settled by Chapter 33 of the Public Laws of 1887, of which Section 1 is as follows: “That in all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon as a defense, it shall be set up in the answer and proved on the trial.” This act, which is generally regarded as having been caused by the decision of this Court in Owen’s case, 88 N. C., 502, lays down the law as followed by the Courts of the United States, of England, and of thirty-five out of the forty-five States of the Union. Shear, and Red. Neg. (5th Ed.), See. 109; Thompson Neg., 1176; Thompson Car. of Pas., 257, et seep; Wharton Neg., Sec. 423; Redfield on Railways, Sec. 253, and notes; Prideaux v. City, 43 Wis., 513; 28 Am. Rep., 563, Browne’s Note; 62 Am. Dec., Freeman’s Note.
*328It is generally recognized that the burden of proof carries with it the presumption. Lawson Pres. Ev., page 133, Rule 19d. Of the numerous cases, I will quote only a few, italicizing such parts as peculiarly emphasize the point in question:
In Cox v. Railroad, 123 N. C., 604, 610, this Court says: “The negative presumption necessarily accompanies the burden, and remains until the burden is lifted or shifted by direct admissions or a preponderance of proof.”
In Norton v. Railroad, 122 N. C., 910, 928, this Court says: “There is never any presumption, of contributory negligence, as self-preservation is the first instinct of humanity. Where there is no evidence of the fact, the presumption is against contributory negligence, even in the absence of any statute like our own, making it a matter of affirmative defense.”
In Texas, etc., Ry. v. Gentry, 163 U. S., 353, the Supreme Court of the United States says, on page 366 : “As already stated, no one personally witnessed the crossing of the track by the deceased, nor the running of the flat car over him. Whether he did) or did not stop*, and look, and listen for ap--proaching trains, the jury.could not tell from the evidence. The presumption is that he did ” citing Continental Imp. Co. v. Stead, 95 U. S., 161, 164, and B. and O. Railroad v. Griffith, 159 U. S,, 603, 609.
In Railroad v. Chisholm, 83 Fed. Rep., 652, the Court (U. S. Circuit Court of Appeals) says, on page 656: “The law does not presume negligence, but it presumes, until the contrary is shown, that everyone in a given situation will act, and lias acted, prudently, and with a due regard for his own safety.”
In Schum v. Pa. Ry., 107 Pa. St. 8, 52 Am. Rep., 468, the Court says, on page 12: “The common law presumption is that everyone does his duty until the contrary is proved, and in the absence of all evidence on the subject, the presumption *329is that the decedent observed the precautions which the law prescribed.”
In Crumpley v. Ry. Co., 111 Mo., 152, the Court says, on page 158: “Contributory negligence is an affirmative defense, which the party alleging it is required to prove; and in this case the burden was on defendant to show that deceased did not exercise care. In the absence of proof to. the contrary the presumption is that he was at the tim'e in the exercise of care and diligence.”
In Smith v. Railroad, 4 South Dakota, 71, the Court says: “In the absence, therefore, of any evidence upon the subject, it would be the duty of the Court to assume that the plaintiff was not guilty of contributory negligence.”
In McBride v. Railroad Co., 19 Ore., 64, the Court says, on page 58: “In the case at bar, no witness was called who saw the occurrence. There is no evidence whatever whether the decedent in fact 'did stopi and look and listen. The presumption is that he did; proof of that fact was no part of the plaintiff’s case.”
In Mynning v. Railroad Co., 64 Mich., 93, 8 Am. St. Rep., 804, the Court says, oru page 102: "The presumption of law is that the person killed at a crossing did stop; and look and listen, and will prevail in the absence of direct testimony on the subject.”
It will appear from] the above quotations, each taken from a different State, and representing a line of authorities, that there is a uniform legal presumption, not only that the decedent was not guilty of any active negligence, but also that he took all the precautions for his own safety required by law.
This presumption is rebuttable', but, as was said in Cox v. Railroad, supra, it “remains until the burden is lifted or shifted by direct admissions or a preponderance of proof.” There was clearly error in the Court below refusing to give I he instruction as requested by the plaintiff.
*330The above opinion was written) tentatively as ray view of tire law.
There is another serious error in the opinion of the Court. It practically admits that the plaintiff was entitled to his prayer as to the presumption of due care on the part of the intestate, but intimates that this has become an abstract proposition, because the Statute of 1887 expressly imposes the burden of proof of contributory negligence upon the defendant. It clearly seems to: me that the statute! is an additional reason why the prayer should have been given. Again, the Court seems to hold that because the record states inferen-ti ally that the Judge below “stated the rule as to the burden of proof” that there is- a presumption that he stated it correctly, and that this presumption cures all exceptions to his refusal to' give prayers which are ini themselves correct. In other words, the Judge below, can, in his discretion, properly refuse all prayers and justify such refusal upon the bare statement in the record that he had “stated the rule,^ or “properly charged” upon the points raised by such prayers. This rule would practically destroy the value of an appeal, as it would t'ate away from) this Court the power of passing upon the essential question. When there is an exception to the charge, or the refusal to charge, of the Court below, it is for this Court to say whether there is error; and when a material prayer is refused, it must appear to us affirmatively from the record, either that such prayer was ini itself erroneous, or that it was substantially given in the charge. This has been expressly decided.
The Court seems to tahe it for granted1 the jury found the issue of contributory negligence on the ^ ground of intoxication. Where have the jury said so ? Not in their verdict, for they found simply that the deceased was guilty of contributory negligence. This finding may have been based upon the deceased standing upon an apron that was not intended *331for any such purpose, as was strenuously contended by tbe defendant. His Honor, after charging upon the first issue as to the assumption of risk, in case the apron was constructed and used solely to prevent coal from falling overboard, added the following words to his charge upon the issue of contribur tory negligence: “These instructions are also given subject to the instructions just given with reference to the apron’s sole use.” This would naturally lead the jury to believe that they must consider the question of assumption of risk upon both' issues. Hence, arises the - importance of the excluded evidence discussed in this opinion, but not alluded to by the Court. If we must find the facts, there seems to be but one rational conclusion to be drawn from the evidence as to the maimer of intestate’s death. He was evidently letting himself down from the car, and scraped the side of the car with his toe as he swung down'. He let go his hold when he landed upon the apron, which immediately broke beneath him. He then grabbed for the top of the car, hut failed to reach it, and scratched the side of the car with his- finger-nails as he went down. He must have been facing the car or he could not have scratched it with his finger-nails, and he could not have scratched it with both his fingers and his heel at the same time. He must have gone down in an upright position or he could not have gone through the narrow opening between the platform and the car. He could not have gone down head foremost, as there is1 no conceivable way by which he could have gotten into that position. Therefore, he must have gone down feet foremost. If he had rolled off the car he could not have scratched the car so far down the side, and, in all probability, would have rolled over on to the platform without touching the car. If he had “pitched off” the car, either backwards or forwards, his hand would have been away from the ear and he would necessarily have fallen on the platform. A man six feet high falling across am opening only two feet *332wide, can not possibly go through it. The greater part of bis body would inevitably strike the platform. The fact that the apron was broken off only at one end shows that his weight must have been concentrated at that point. This idea was evidently in the mind of the Coroner, Dr. Tayloe, who was a very intelligent witness. He testified, in part, as follows: “I saw marks on the side of the car beginning within a few inches of the topi and going down perpendicularly the full extent of the car. They looked like the naan had tried to catch as he went down. * * * The scratches showed that the man must have been grasping at the car as he slipped from it. * * * The same impressions might have been made by a man accidentally falling off or by a man getting down from the car.” Taking all the circumstances together, the scratches upon the car, the breaking of the apron at one end, and a large man falling through the small opening, all tend to prove that he fell in the manner I have described. No other theory would be consistent with all the admitted facts. If this is true, the breaking of the apron was the proximate cause of the injury, and hence the vital importance of the excluded testimony as to the condition of the ap-ron, and the direct application of the prayer as to the presumption of care. Moreover, the above undisputed facts are inconsistent with the theory of drunkenness. It is common knowledge that when a drunken m an falls he does so from a relaxation of the muscles. The extreme muscular tension necessary to hold a man’s fingers against the car with) sufficient force to scrape it from to-p to bottom would be impossible in a state of intoxication.
I can not concur in the opinion of the Court.
CLARK, J., concurs in the dissenting opinion.