Was there error in overruling the above motion for a new trial ? The settlement of this inquiry involves the consideration of two questions. First, whether the verdict of the jury was manifestly against the preponderance of the evidence; and secondly, whether it was contrary to law, being either against the same as propounded by the court, or in pursuance of instructions erroneously given.
In considering the first of these propositions, we assume . that if the complaint in its form and essence, as set forth in the petition, be not true, that then in law the plaintiff is not entitled to recover.
What then do we understand the charge in its substance to be ? In our preliminary statement of the case we have already set it out as concisely, perhaps, $s it can very well be done. In support of it the plaintiff called and examined four witnesses. The defendant, three against it. We will first state the facts about which there is no disagreement among the witnesses on either side, namely:
That James Eogus, the party killed, got upon the cars going east, at DeWitt, after dark; that he was very drunk; that he did not pay his fare when demanded by the conductor ; that for this reason, and not because he. was disturbing the passengers by his noise and profanity; he was forcibly thrown out or dragged from the cars at the next station, called Eamessa, at the usual depot; that the depot platform was low, about on a level with the rails *20on the road and near the same; that the night was foggy, yery dark, drizzling a little rain ; that there were but three houses at Ramessa; the nearest was one hundred yards, and the farthest one hundred rods distant from the. depot; that no lights could be seen in either; that Ramessa was a flag station, at which the train usually halted only when signaled; at this station, near the track, Rogus was left, in the dark, unattended and alone. Next morning his body was found on the track, nearly a half mile east of the depot, badly mangled, and as it lay east of where blood and bones were discovered upon the track, it was believed that he was killed by a locomotive going east. As to these facts no question is made, but in addition to them, the plaintiff to support the case made in his petition, must show that Rogus, at the time of his forcible expulsion from the cars, was roughly treated, and injured thereby, and in other respects was in a state of mind from intoxication, which rendered him incapable of exercising any care of himself, and thus situated was left in an exposed position, &c.
'Upon these points the plaintiff introduced four witnesses: First. The plaintiff himself, who only testified that he lives at Ramessa; was the administrator of Rogus, who was killed by a locomotive; and that Rogus left a wife and two children. The next was Andrew J. Brosell, a passenger, who knew Rogus; observed his condition, and witnessed the manner in which he was thrust from the cars; and he says that he was very drunk; that he knew nothing at all; that he sat on his seat with his mouth open, snoring; that he paid no attention to the conductor when asked for the fare, nor when he was shaken by the conductor; yet when the conductor said, if you do not pay me on my return I will put you off, Rogus asked, what is it? he replied, eighty cents; Rogus said he would pay him sixty cents. On his return, failing to get the fare on demand, he caught Rogus with *21both, hands, by tbe face or bead, and dragged bim to tbe floor; Bogus fell like a dead man, with his head against tbe stanchion of tbe door; be was then dragged by two) men out of and from tbe car. Before be left tbe car, however, be offered to pay the fare.
Laura Abbott, a passenger, left tbe cars at Bamessa, near which she resided. She also bad occasion to observe Bogus ; be was much in liquor. When she stepped from tbe cars, Bogus was thrown or lodged at her feet, bead foremost.
Henry Pillram, station agent, resided at Bamessa; first saw Bogus when put off, about ten o’clock at night; be was so drunk that be could but just stand; two men laid bim on the ground; no direction was given witness what to do with bim; be was left alone on tbe platform, two feet from tbe railway track; it was so dark that the bead light of tbe cars could not be seen more than forty or fifty rods.
The testimony for tbe defense, so far as it differs from tbe foregoing facts, is as -follows: Baymond, tbe conductor, says that it was for tbe non-payment of tbe fare alone that Bogus was put off; that in doing so be did not seize bim by his whiskers or tbe side of bis face, but by bis collar; gave bim a jerk and be fell on bis face and bead near the door; be directed the baggageman (Thurston) to put bim off; be was assisted by one Cunningham, who was not an employe of tbe road; they laid bim on tbe platform; when off, Bogus said, John, let me ride, I’ll pay you; this was tbe first offer be made to pay; be did not offer to pay sixty cents or any other amount in tbe cars; bis expulsion was according to tbe rules of tbe company, &c.
The witness, Thurston, was at tbe brakes; was told by conductor to put Bogus off; be did so; helped bim down as gently as be could; be did not go off bead first; nor was be hurt; Cunningham took bim by the shoulders and arms and laid bim carefully upon tbe platform. In this *22statement, the testimony of Cunningham substantially agrees.
.In his second examination Baymond, the conductor, said: Bogus had long whiskers; made no noise; was very drunk, so much so that he did not appear to know anything; that when he pulled him off his seat he fell harder than he intended; he might have been hurt some, but such was not his intention; the next train we met was at Camanche going west; the next eastern train should have gone by during the night, but don’t remember at what hour.
, m propínate’ results. Such is the testimony. Now the gist of the plaintiff’s case is, not that Bogus was cruelly and harshly treated, nor yet that the defendant had no right, under the circumstances, to displace Bogus from the cars¡ but that such displacement was effected under circumstances and at a time when he was in a condition mentally and physically incapable from intoxication of taking care of himself.
Although the evidence shows -that Bogus was forcibly -and roughly ejected from the cars, and .may have been more or less bruised, yet it falls quite short of showing that he was so physicálly injured thereby'as to render him incapable of exercising due care of himself as the result of such injury, yet, nevertheless,- the evidence does show that at that particular time he was extremely intoxicated, so much so that, in the language of two of the witnesses, he seemed to know nothing, and in this condition he was strangely and carelessly left in an exposed, not to say a dangerous position near the railway track (but not on the same as alleged in the petition), about ten o’clock of a very dark night. Now this, without showing more, does not prove the plaintiff’s case as made in his petition; for it is also allegfed therein “ that, by reason of which, á train of defendant's cars ran over and, injured him; that he then and there died." To entitle the plaintiff to recover in this case, *23the law, as well as this material allegation of the petition, requires him to prove that the killing was the natural or proximate result of the act complained of. If, for instance, in a reasonably short time thereafter, before he could have been supposed to have passed from under the effects of his intoxication, and within a short distance from the place where he was dislodged from the cars, he had been found a mangled corpse on the track, from the passage of the train over him, evidence tending to establish such a state of case would authorize the conclusion, perhaps, that the conduct of defendant in the premises was the necessary and proxi,mate cause of the disaster.
_ instruction. But the evidence shows a different state of case. It proves first, beyond doubt, that the train of cars from which he was ejected did not injure him; that two other distinct trains passed over that part of the railroad track 'that night, one going' west, the other east; that the former passed along about an hour, more or less, after Bogus had been left; the latter, according to a time-table introduced as evidence in the case, about four o’clock and twenty minutes in the morning. It is clear, from-the position of the remains of the. deceased, and the bloody marks left upon the track, that it was this last train,- if any, that ran over Bogus, and that, too, very nearly one-half mile east of the Bamessa depot, where he had been left. . Now, it is not pretended that it was the carelessness of the defendant’s employes operating the train that ran over Bogus that caused his injury and death; but that if the defendant is responsible at all for the unfortunate occurrence, it must be for the acts of its servants in expelling Bogus from Bie carg Bamessa, and leaving him near the track in a state of intoxication. But he was not killed at or near the place where he was left, nor, so far as the evidence shows, during the time that his sense and reason were suffering an eclipse from the effects *24of liquor. According to the evidence he met with his disaster a half mile distant from the place where he was put off, so that there was no necessary connection between the dangerous position in which he was left by defendant’s servants, as it is claimed, and the scene or locality of his death. Again, the time when this occurred was some six hours, or more, after his displacement from the cars. Whether his faculties had so far recovered with the power of locomotion, as to enable him to understand the danger of being upon the track while trains of cars were passing at that time, is a question to which the attention of the jury should have been called, and should have been passed upon by them. This remoteness of time and place, when and where the accident took place, from the scene of negligence charged upon the defendant, is what renders the verdict of the jury so unsatisfactory to us, and makes us feel that it is our duty to award a new trial, to the end that justice may be the more nearly attained.
3._mu. ' tugence?u The rules of law applicable to this case, will be found discussed and settled in the case of The State of Maryland to the use of Mary Couchlon v. The Baltimore and Ohio Railroad Company, reported in May number, 1866, of the American Law Register, together with the authorities there cited, in a note added by Judge Redeield. The leading principle here laid down is, that the plaintiff cannot recover for an injury resulting from the negligence of the defendant, if, notwithstanding such negligence, his own want of such care and prudence, or that of the party injured, in any way contributed directly to the injury.
Now, without placing any special stress or emphasis upon Rogus’ drunkenness, the result of his own imprudence and a violation of law, or his neglect and refusal to pay his railroad fare, a violation of the rules and regulations of the company, as the remote but primal cause of his death, yet the evidence in this case places him in the *25attitude of walking on and along the railway track, upon a dark night, when no amount of vigilance on the part of the defendant could discover him, and in this way was struck and run over. Now, how far his own imprudence and want of care was the proximate, whilst that of the defendant was the remote cause of his death, is a question for the jury. If they should find his injury the result of his own want of care at a time when he was capable of judging,.then the law will not permit a recovery; and this rule will be found to be very happily explicated in the case of Trow v. The Vermont Central Railroad Company, 24 Vt., 487, in which, among other things, Justice Isham remarks, that his investigations lead to the question whether an action can be sustained, when the negligence of the plaintiff and defendant has mutually cooperated in producing the injury for which the action has been brought. On this question, he says, the following rules will be found established by the authorities :
When there has been mutual negligence, and the negligence of each party was the proximate cause of the injury, no action whatever can be sustained. In the use of the words, proximate cause, is meant negligence occurring at ike time the injury happened. In such case no action can be sustained by either for the reason that as there can be no apportionment of damages, there can be no recovery. So, when the negligence of the plaintiff is proximate, add that of the defendant remote, or consisting in some other matter than what occurred at the time of the injury, in such case no action can be sustained, for the reason that the immediate cause was the act of the plaintiff.' On the other hand, when the negligence of the defendant is proximate, and that of the plaintiff remote, the action can then well be sustained, although the plaintiff is not entirely without fault. This seems to be the settled doctrine in England and in this country, in support of which we are refer *26to Hill v. Warren, 2 Stark., 377; Munroe v. Leach; 7 Metc., 274; Parker v. Adams, 12 Id., 415; Brownell v. Flagler, 5 Hill, 282; Brown v. Maxwell, 6 Id., 592, and others.
4,__,appli. cation. Adopting, as we are inclined to do, and applying these principles to the 'case at bar, we are brought to the conelusion-that the verdict of the jury was clearly against the law, as well as the facts of the case.
As to the charge of the court to the jury, we remark, that the same was substantially correct, so far as it goes, and not unfavorable to the appellant, but it lacked definiteness upon the point we are discussing, namely, the proximate and remote causes of the injury and'death of Rogus, and what acts, when proved, would constitute negligence on the part of the plaintiff. Negligence in either party being a mixed question of law- and fact, we .suppose it to be proper for the court to be somewhat specific in its instructions bearing upon that question. It is not, however, intended to pass any opinion upon the facts adverse to the rights of the plaintiff; they are for the jury, under appropriate instructions. One object in awarding a new trial is, that the questions arising may be once more carefully and intelligently adjudged upon the principles of law herein laid down.
Reversed.