*236On Petition for Rehearing.
Roby, J.The act of 1899 heretofore cited is as follows: “That hereafter in all actions for damages brought on account of the alleged negligence of any person, copartnership, or corporation, for causing personal injuries, or the death of any person, it shall not he necessary for the plaintiff in such action to allege or prove the want of contributory negligence on the part of the plaintiff, or on the part of the person for whose injury or death the action may be brought. Contributory negligence, on the part of the plaintiff, or such other person, shall be a matter of defense, and such defense may be proved under the answer of general denial: Provided, that this act shall not affect pending litigation.” §359a Burns 1901. Before this act became effective the Indiana courts uniformly held that one seeking to recover damages because of the negligence of another must aver and prove his own freedom from contributory negligence. President, etc., v. Dusouchett, 2 Ind. 586, 54 Am. Dec. 427; Pennsylvania Co. v. Gallentine, 77 Ind. 322-329. The rule requiring the plaintiff to establish his own freedom from negligence of necessity operated to prevent the application of presumptions in his favor. Toledo, etc., R. Co. v. Brannagan, 75 Ind. 490. The courts did not declare it necessary for the plaintiff to make proof, and then proceed, by the application of a presumption of law, to furnish the proof for him, hut he was required to establish the fact. The act of 1899 in all things reversed the rule which theretofore obtained. “It shall not be necessary for the plaintiff in such action to allege or prove the want of contributory negligence on the part of the plaintiff, or on the part of the person for whose injury or death the action may be brought. Contributory negligence, on the part of the plaintiff, or such other person, shall be a matter of defense.”
The presumption of contributory negligence arose from *237the rule placing the burden upon the plaintiff as to that fact. “In those jurisdictions where the burden is on the plaintiff of proving affirmatively that he was not contrihutorily negligent, the presumption necessarily is that the plaintiff Was contributorily negligent, hut in other jurisdictions where the burden is not on the plaintiff of proving affirmatively.that he was not contributorily negligent, the presumption is that he was not contributorily negligent.” Lawson, Presumptive Ev. (2d ed.), 133. The statute which changed the burden of proof as to this fact of necessity removed the presumption against the plaintiff. To hold otherwise would he to ignore and override the legislative intent.
It is, however, insisted that there is a presumption of negligence against the traveler injured by collision with a railway train at a highway crossing, different from and additional to the general presumption of contributory negligence which formerly obtained in other cases. It is undoubtedly the law that the party in whose favor a presumption arises is entitled to its benefit as a matter of evidence, without regard to whether the facts upon which it depends were elicited by himself or his adversary, at one time or another.
It remains, then, to inquire only whether an independent presumption of contributory negligence attaches to the plaintiff in a crossing case from the mere fact that he was injured at the crossing, operating in behalf of the defendant to establish the fact which is now by statute devolved upon him to prove.
In the case of Hathaway v. Toledo, etc., R. Co., 46 Ind. 25-30, the opinion of the court was in part as follows: “The court, at the request of the defendant, instructed the jury as follows: ‘When a person crossing a railroad track is injured by collision with a train, the fault is, prima facie, his own, and he must show affirmatively that his fault or negligence did not contribute to the injury, before he is *238entitled to recover for such injury.’ This instruction means no more, we think, than that in such cases it must be made to appear by the plaintiff that the injury occurred without blamable negligence on his part, before he can recover. Such, we think, is the law, as established by the authorities to which we have referred in another part of this opinion.” This instruction was substantially the same as the sixteenth instruction given in the case at bar. The prima facie negligence of the plaintiff is declared, in a crossing case, and the presumption is said to be nothing more than an enforcement of the rule by which the burden of proof is» put upon the plaintiff. The case is treated exactly as any other case involving the issue. No discrimination is made or suggested between crossing and other cases, and if the former have been placed in a class by themselves it must have been done by some other decision. No authority is cited in Hathaway v. Toledo, etc., R. Co., supra, to this proposition. It is believed to have been the initial case upon the subject in Indiana.
The importance of these considerations is found in the fact that the case cited is not only the leading one upon the subject, but that it expresses the reason for the presumption as declared in all subsequent decisions, of which there are many. Whenever in the Indiana cases the statement is found “that the fault was prima, facie his own,” or “that the law' presumes that his injuries were brought about by his own negligence,” or kindred expressions, as applied to one injured by collision with a railway train at a highway, the authority cited in support thereof will be found to be Hathaway v. Toledo, etc., R. Co., supra, or some case or cases in turn based upon it. The reason of the presumption as stated in the Hathaway case is repeated and approved by the Supreme Court in Baltimore, etc., R. Co. v. Young, 153 Ind. 163-171, and must therefore be taken as the reason of the declaration as made in the intermediate cases. It is to be noted also -in the cases that the state*239ment of the presumption of prima facie negligence is invariably associated with the further statement that “before he can recover * * * he must affirmatively establish his own freedom from contributory negligence.”
In the federal courts contributory negligence is matter of defense. The attitude of these courts upon the question under consideration can not be more clearly expressed than by the following extract from a recent opinion prepared by Justice Harlan: “One of the assignments of error relates to the refusal of the court to give the following special instructions asked by the defendant: ‘You are instructed that it is the duty of an employe or any other party, about to cross a railroad track, to look and listen for passing engines, cars, or trains, to ascertain whether or not same are approaching, before going upon the track, and if the party fails to exercise such care, he can not recover.’ You are therefore instructed that if the deceased L. D. Gentry, by looking or listening, could have known, of the approach of the engine and car and in time to have kept off the track and prevented the injury to himself, and that he failed to do so, you will find for the defendant.’ * * * But the present case did not admit of or require an instruction upon this special subject. There was no evidence upon which to rest such an instruction. 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 approaching trains, the jury could not tell from the evidence. The presumption is that he did; and if the court had given the special instructions asked, it Would have been necessary to accompany it with the statement that there was no evidence upon the point, and that the law presumed that the deceased did look and listen for coming trains before crossing the track. In Continental Improv. Co. v. Stead, 95 U. S. 161, 164, 24 L. Ed. 403, 405, the court, speaking by Mr. Justice Bradley upon the subject of the relative rights and duties *240of a railroad company and the owner of a vehicle crossing its track, said: ‘Those who are crossing a railroad track are bound to exercise ordinary care and diligence to ascertain whether a train is approaching. They have, indeed, the greatest incentives to caution,' for their lives are in imminent danger if collision happen; and hence it will not be presumed, without evidence, that they do not exercise proper care.’ ” Texas, etc., R. Co. v. Gentry, 163 U. S. 353, 41 L. Ed. 186, 16 Sup. Ct. 1104. Or by the following : “There was no error in instructing the jury that, in. the absence of evidence to the contrary, there Was a presumption that the deceased stopped, looked, and listened. * * * The presumption is founded on á law of nature. We know of no more universal instinct than that of self-preservation —none that so insistently urges to care against injury. It has its motives to exercise in the fear of pain, maiming, and death. There are few presumptions based on human feelings or experience that have surer foundation than that expressed in the instruction objected to. But, notwithstanding the incentives to the contrary, men are sometimes inattentive, careless, or reckless of danger. These the law does not excuse nor does it distinguish between the degrees of negligence.”' Baltimore, etc., R. Co. v. Landrigan, 191 U. S. 461, 24 Sup. Ct. 137, 140, 48 L. Ed. 262; Baltimore, etc., R. Co. v. Griffith, 159 U. S. 603, 16 Sup. Ct. 105, 40 L. Ed. 274; Thomas v. Delaware, etc., R. Co., 8 Fed. 729; Chesapeake, etc., R. Co. v. Steele, 84 Fed. 93, 29 C. C. A. 81.
The courts of the following states hold that there is no presumption of contributory negligence in such case as the one presented: Schum v. Pennsylvania R. Co., 107 Pa. St. 8, 52 Am. Rep. 468; Pennsylvania R. Co. v. Weber, 76 Pa. St. 157, 18 Am. Rep. 407; Lyman v. Boston, etc., Railroad, 66 N. H. 200, 20 Atl. 976, 11 L. R. A. 364; Nutter v. Boston, etc., Railroad, 60 N. H. 483; Mynning v. Detroit, etc., R. Co., 64 Mich. 93, 31 N. W. 147, 8 Am. *241St. 804; Haas v. Grand Rapids, etc., R. Co., 47 Mich. 401, 11 N. W. 216; McBride v. Northern Pac. R. Co., 19 Ore. 64, 23 Pac. 814; Phillips v. Milwaukee, etc., R. Co., 77 Wis. 349, 46 N. W. 543, 9 L. R. A. 521; Duame v. Chicago, etc., R. Co., 72 Wis. 523, 40 N. W. 394, 7 Am. St. 879; Cassidy v. Angell, 12 R. I. 447, 34 Am. Rep. 690; Fugler v. Bothe, 43 Mo. App. 44, 55; Schlereth v. Missouri Pac. R. Co., 96 Mo. 509, 10 S. W. 66; McQuilken v. Central Pac. R. Co., 50 Cal. 7; MacDougall v. Central R. Co., 63 Cal. 431; Hendrickson v. Great Northern R. Co., 49 Minn. 245, 51 N. W. 1044, 32 Am. St. 540, 16 L. R. A. 261; Copley v. New Haven, etc., Co., 136 Mass. 6-9; Mayo v. Boston, etc., Railroad, 104 Mass. 137; Bonnell v. Delaware, etc., R. Co., 39 N. J. L. 189; Northern Cent. R. Co. v. State, 31 Md. 357, 100 Am. Dec. 69; Norton v. North Carolina R. Co., 122 N. C. 910-928, 29 S. E. 886.
There is no basis upon which to build a presumption of contributory negligence in such a case except it be (1) from the fact that the accident occurred; (2) from the fact that in a large number of other instances persons in the exercise of due care have passed over railway tracks in safety. That no presumption of negligence arises from the occurrence of an accident and the infliction of injury has been frequently decided in this State. Louisville, etc., R. Co. v. Crunk, 119 Ind. 542, 12 Am. St. 443; Ohio, etc., R. Co. v. Collarn, 73 Ind. 261, 38 Am. Rep. 134; Evansville, etc., R. Co. v. Duncan, 28 Ind. 441, 447, 92 Am. Dec. 322; Jeffersonville, etc., R. Co. v. Hendricks, 41 Ind. 48; Pennsylvania Co. v. Long, 94 Ind. 250; Town of Albion v. Hetrick, 90 Ind. 545, 46 Am. Rep. 230.
There is no greater reason for presuming negligence against one party than against another. Evidence of similar occurrences at different times is not admissible for the purpose of establishing defendant’s negligence. Chicago, etc., R. Co. v. Lee, 17 Ind. App. 215, 222; Chicago, etc., R. Co. v. Hodge, 55 Ill. App. 166; First Nat. Bank v. *242Ocean Nat. Bank, 60 N. Y. 278, 19 Am. Rep. 181; 21 Am. & Eng. Ency. Law (2d ed.), 518, and cases cited. It would not be entirely reasonable for tbe court to raise presumptions from tbe assumed existence of facts, the proof of which it would not permit to be made.
The decision of this case is limited by the facts presented. These are that the injury occurred at a crossing, and that the defendant was negligent in connection therewith. The character of the crossing and the circumstances surrounding the injury are not shown. If they are such as to require an inference of contributory negligence, such inference can be drawn after they are disclosed, but the burden of exhibiting them was upon the appellant.
Of course nothing that has been said has any relation to the presumption that a man with good eyes and ears can see an approaching train of cars if he looks toward it, and can hear the noise made by it if he listens, in the absence of some peculiar condition.
The opinion heretofore rendered is adhered to, and the petition for a rehearing overruled.