concurring: I agree with the opinion of the Court that the question of proximate cause is involved in the first issue, and that before the "jury can answer that issue in the affirmative they must find that the defendant was negligent and that this negligence was the proximate cause of the injury.
Otherwise, the jury could find that the defendant was negligent and that the plaintiff was not guilty of contributory negligence, and could award damages to the plaintiff without finding that the negligence of the defendant caused the injury to the plaintiff.
I also concur in the opinion expressed by the Chief Justice, which I do not understand to be controverted, that the negligence of the plaintiff, before it will bar his recovery, must be' contributory, and that to be contributory it must be either the sole proximate cause of the injury or it must concur in point of' time with the negligence of the defendant in bringing it about; but I do not think there is any reasonable view of the evidence in this case tending to show that the plaintiff went between the cars while they were in motion, that the cars *364stopped, and that he was then injured by a sudden movement of the train, and it is upon this view that the opinion of the Chief Justice is predicated.
The only question of fact in dispute between the plaintiff and the defendant was whether the cars were in motion when the plaintiff went between them, and the plaintiff did not testify or contend that he went in while the cars were in motion, that they then stopped, and that he was afterwards injured by the movement of the cars; and I agree to a new trial because I do not think that the jury could have understood from the charge that the determination of the issue depended almost entirely upon this one fact.