dissenting. — I cannot concur in the conclusions of •the foregoing opinion which find error in the rulings of the court upon the instruction to the jury.
I. In my opinion the fourth instruction given is correct. Certainly the condition of the plaintiff, whether intoxicated or sober, was a question for the jury. And, for the reasons pointed out in the majority opinion, the burden rested upon defendant to show plaintiff’s intoxication, and not upon plaintiff to show that he was sober. So far the instruction must be right. It proceeds then to direct the jury that, if they find plaintiff was intoxicated, to j ustify the conclusion of his want of care, they must further find from the evidence that, on account of his intoxication, he was careless or reckless. In other words, simple intoxication — a condition which is in fact intoxication, of itself would not authorize the conclusion of want of care. The instruction is based upon the thought that all conditions of intoxication do not necessarily cause the intoxicated person to be careless and reckless of his personal safety. If he be but slightly intoxicated, or if intoxicated to *324a certain degree which serves to arouse his energies and awaken his understanding, his condition would not warrant the conclusion that he was careless and reckless. If intoxication be further advanced, if his mind be darkened or his will impaired — if he be less capable of discovering or understanding danger that threatens, we would be authorized to conclude that he did not exercise reasonable care. It cannot be said that every state of intoxication, from that condition which is first so called, to the advanced drunkenness which deprives a man of reason and the control of his body, shall be governed by the same rules in determining the existence of capacity and natural instinct for the exercise of care. The observation of all men must be to the effect that some persons, if not all, when in the first stages of intoxication, are just as capable and just as vigilant as to all affairs of life, as when not under the influence of intoxicating liquors at all. Further indulgence will take them beyond the control of reason and render them incapable of watchfulness. In the case before us, it was the duty of the jury to determine whether plaintiff’s condition was the one or the other.
The conclusion of the majority of the court is based upon the position that a state of intoxication, even the first stage, is inconsistent with the exercise of care, and that where intoxication of plaintiff was shown the burden of proof was then shifted upon him to show that, notwithstanding his intoxication, he did exercise care. But why impose a burden upon him to further prove care when his condition of intoxication did not warrant the conclusion of his inability, want of will, or absence of intention to exercise care? It is imposing a burden of proof whore no necessity of proof exists, for we have seen that no inference of carelessness is necessarily to be drawn from the existence of the first stage of intoxication. In order, then, to show his care he is not required to rebut the evidence of his intoxication. The majority of the court hold that the intoxication of defendant must be denied by rebutting evidence before plaintiff can establish care. This can only be true on the ground that intoxication in all degrees — the first as-well as all others' — renders it necessary to infer carelessness. *325It will be observed, too, that care, according to the views of the majority, is to be shown by establishing sobriety ■ — by rebutting the proof of intoxication. This would render it utterly impossible for a man in any stage of intoxication to show that he did exercise care. The majority say if he was drunk he can only show care by proving that he was sober; if his drunkenness be established or conceded, lie must be held to be careless. This is a more severe penalty, in the nature of a disability, imposed upon intoxication than I think just. I km of the opinion that the rule adopted by the court below is correct, namely, the jury should determine from the evidence whether the intoxication of plaintiff was such as to authorize the inference of want of care for his safety.
My brothers say, “We do not mean to say that it is necessarily negligent to be on a dangerous street in a state of intoxication, but that from being in such a place in such a condition the jury may find that the plaintiff was negligent.” This is very true and is just what the court informed the jury in the instruction under consideration; they were instructed that they could find want of care from intoxication. The opinion proceeds: “And when a case occurs in which the jury may find negligence from .a state of intoxication, in order to prevent the possibility of such an inference it should appear in behalf of the plaintiff, either from the presumption which exists in his favor, or when the defendant’s testimony successfully meets and overcomes the presumption, then by a preponderance of all the testimony taken together that he was not at the time of the injury in an intoxicated condition.” Now, what is said in these quotations is this: want of care may be but is not necessarily inferred from intoxication; if intoxication be shown, in order to prevent such possible inference plaintiff must show sobriety, that is, he must meet a possible inference by proof that will make such inference impossible-in order to overcome evidence possibly deducible from a given fact he must show the fact did not exist.
But the rule unquestionably is that if an inference may or may not be drawn from an established fact, the jury must be left to determine the existence or non-existence of the thing *326which is the subject of the inference from all the evidence, the attendant facts and circumstances lawfully submitted to them for consideration. Upon the issue of want of care on-account of intoxication, the state or condition of the intoxication, considered in the light of every day observation of the capacity of men in different stages of intoxication and common sense, are to be applied by the jury in determining the question before them. This is just what the instruction pronounced erroneous by my brothers directs the jury to do.
I do not know how I can more clearly show the difference of views between my brothers and myself, than by quoting the last paragraph of their opinion on this point, substituting certain words therein to present the true rule as I regal’d it. It is as follows: when read, the words in italics should be stricken out, and the words in parenthesis substituted. “ The jury should have been instructed that, if they should find it would (might) be negligent to be in the place in question in a state of intoxication, then they must find from the preponderance of evidence that plaintiff was not intoxicated, (negligent on account of intoxication,) and that the intoxication of plaintiff should not defeat his recovery, if it did not contribute to the injury which he sustained.”
The quotation in the language of my brothers, it appears to me, fails to present consistent and harmonious thoughts.
If the jury found “it would be negligence to be in the place in question in a state of intoxication,” their next duty was to inquire whether plaintiff was intoxicated. This they would be required to determine from the whole evidence. Plaintiff’s sobriety is presumed, as that is the normal condition of man. He may rest upon this presumption. Defendant offei-s some evidence of intoxication; plaintiff is not defeated unless this evidence overcome the presumption; in such a case he is not required to prove he was not drunk. Whether the plaintiff is drunk or sober is a question to be determined upon the whole evidence; the presumption in favor of plaintiff’s sobriety making out & prima facie case for him. The conrt, in the instruction objected to, directed the jury that defendant must show by a fair preponderance of the evidence, all the evidence, that *327plaintiff was drunk, that is, the evidence, all the evidence, must overcome the presumption in favor of his sobriety.
It appears to me that by no fair interpretation can the instruction be held to so direct the jury that they would be authorized to find the defendant in the exercise of care, if he were so drunk as to have lost “control of his muscular action to such an extent as to be unable to avoid injury.” They were to consider his condition of intoxication, in order to determine the question of care. Since the jury must be left to the exercise of common sense, of knowledge derived from common experience, the court certainly is not required to lay down all the rules they must apply to the case which are drawn from these sources. When the court informed the jury they were to determine the care exercised by plaintiff, by considering his condition, they certainly would not understand that, if they found he was so drunk as to have lost muscular control and was, for that reason, unable to avoid injury, they were to find that he exercised due care. The instruction gives no such direction, and an intelligent jury would, not infer it from the language used.
II. The refusal to give the 13th instruction asked by defendant, and set out in the foregoing opinion, is held by the majority of the court to be error on the ground that defendant’s liability depended upon the condition of the side walk at the time plaintiff was injured, not upon its prior condition. But this thought is clearly and directly presented in the 4th instruction given by the court upon its own motion, and in the first and twelfth given at.the request of defendant. It was' not error for the court to refuse its repetition.
In my opinion the judgment of the Circuit Court ought to be affirmed.