delivered the opinion of tire court.
A. T. Mason institutes suit in the circuit court of Benton county, against the Mississippi Central Railroad Company, for the recovery of damages alleged to have been sustained by him by the carelessness and negligence of the defendants in the construction and repair of their railroad -bed on their right of way through his land.
Upon the plea oi the general issue, not guilty, the cause was submitted to a jury, who found for the plaintiff, and assessed his damages at five thousand dollars.
And thereupon the defendants moved the court for a new trial, on the following grounds:
1. The court erroneously charged on plaintiff’s motion.
2. The court erroneously refused to charge the jury on defendant’s motion.
3. The court erroneously modified charges asked for the defendants.
4. The verdict was contrary to law and evidence.
5. Because of the misbehavior of the jury, as shown by the affidavit filed, the motion was overruled by the court, and judgment rendered on the verdict.
And hence the cause comes to this court upon writ of error on the part of the defendants, who make the following assignments of error:
1. The court below erred in giving the 6th, 7th and 8th instructions asked by the plaintiff..
2. The court erred in modifying the 12th and refusing the 15th instruction asked by the defendants.
*2433. The court erred in overruling the defendants’ motion for a new trial.
The 6th, 7th and 8th instructions to the jury given by the court below on behalf of the plaintiff are correct legal propositions, and the first assignment of error is not well taken.
With respect to the 12th instruction asked by the defendants, we can perceive no error in the action of the court in modifying the same, and think that the instruction as modified and given by the court, lays down the law correctly. Nor do we think there is any error in the refusal of the court to give the 15th instruction asked by the defendants, as inapplicable to the facts of the case as developed by the evidence.
The grounds of defense relied on by the defendants in this action were the two following:'
1. That the plaintiff greatly contributed to, if he did not by his own negligence cause, the injury of which he complains.
■2. That the said injury was the result of natural causes, and would have occurred had no railroad passed through the plaintiff’s land.
The general rule with regard to concurrent negligence is that the party seeking legal redress must not only show his adversary to be in the wrong, but must also be prepared to prove that no negligence of his own has tended to increase or consummate the injury. A party in an action on the case for negligence, cannot recover damages which have resulted from his own negligence and want of care. He must show himself in the right and the defendant in the wrong; that he has performed his duties and that the defendant has neglected his, and that the damages are the legitimate consequence of the negligence of the defendant.
The above stated general rule as to concurrent negligence is subject to the modification or qualification that where one, in the lawful use of his property, put in an exposed or hazardous position, and in more than ordinary danger from the lawful acts of others, as for instance, if he build near a railroad, still he does not lose his remedy for an injury caused by the culpable negligence *244of others. Cook v. Champlain Transportation Co., 1 Denio, 91. And the same principle has been recently declared in England, where it has been said that the defendant is not excused merely because the plaintiff knew that some danger existed, and voluntarily incurred such danger, provided the defendant’s negligence was the cause of the damage, the whole matter being for the consideration of the jury. Clayards v. Dethick et al., 12 Q. B., 439.
To prevent a recovery, the plaintiff’s negligence must proximately contribute to the injury. If the sole immediate cause of the injury was the defendant’s negligence, the plaintiff can recover, notwithstanding previous negligence of his own. The Vicksburg & Jackson R. R. Co. v. Patton, 31 Miss., 156; Trow v. Vermont Central R. R. Co., 24 Vt., 487; Kerwhacher v. The Cleveland, Columbus & Cincinnati R. R. Co., 3 Ohio St., 172; Pittsburg, Fort Wayne & Chicago R. R. Co. v. Karns, 13 Ind., 87; Richmond v. Sacramento Valley R. R. Co., 18 Cal., 351; Stucke v. Mil. & Miss. R. R. Co., 9 Wis., 202.
In the case above referred to of Trow v. Vermont Central E. E. Co., supra., the court say: “ Where 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 now settled in England and in this country. Therefore, if there be negligence on the part of the plaintiff, yet if, at the time when the injury was committed it might have been avoided by the defendant in the exercise of reasonable care and diligence, an action will lie for the injury.”
It is laid down in Isbell v. New York & New Haven Railway Co., 27 Conn., 393, a leading case upon that subject, that the neg-’ ligence on the part of the plaintiff, which will preclude his recovering damages for the negligence of the defendant, must be the actual proximate cause, contributing, to some extent, directly to the injury, and not a mere technical wrong, contributing either incidentally or remotely, or not at all, towards the injury. 2 Redfield’s Am. Railway Cases, 474.
Questions of negligence are always to be submitted to the jury, *245unless where the facts are undisputed and the result of those facts unquestionable, either as proving or disproving such negligence. And where the facts are conceded, but the inference in regard to negligence is still doubtful, depending upon the general knowledge and experience of men, it is the judgment and experience of the jury and not of the judge, which is to be appealed to. Graynor v. Old Colony & Newport Railway, 100 Mass., 208, and 2 Redfield’s Am. Railway Cases, 554.
It has been held, and, we think, upon correct principles, that if a railroad company, by making imperfect sluices or other passage for streams over which their road passes, the land of the adjoining proprietors is injured, the company would be liable to the owners of the land for the damages sustained by overflowing their land, in consequence of such imperfect sluices for the passage of the water, or other obstruction to the stream. In the case of Whitcomb v. Vermont Central R. R. Co., 25 Vt., 49, the plaintiff was declared entitled to recover damages which were occasioned by the want of a sufficient culvert to pass the water, which it was the duty of the defendants to build. 1 Redfield on Am. R’y Cases, 297.
In the case under consideration, whether the plaintiff, by his own act, contributed proximately to the injury complained of, or whether it was the result of natural causes or was produced by the defendants in the erection of the breakwater on Lamar creek, and an insufficient culvert for the passage of the water of said stream, or by their obstructing in any other way the passage of the water in the channel of said creek, by which plaintiff’s land was overflowed, were questions proper for the consideration of the jury. There was great diversity of opinion among the witnesses as to the cause of the damage to plaintiff’s land, as in such cases may be honestly entertained by the witnesses; yet, it is the province of a jury of good honest men of practical sense to scan and weigh the evidence, and ascertain from the whole testimony the amount of proof, and find their verdict accordingly; and when thus found, where no principle of law has been violated, and where there is no ground to impeach it for prejudice, partiality or *246corruption, courts have always been reluctant to disturb such a finding of the jury. This is one of those cases where the mind cannot repose with entire confidence and certainty upon a conclusion in favor of either party. And in such case the verdict will not be disturbed. Watson v. Dickens, 12 S. & M., 608.
The credibility .of witnesses is a matter exclusively for the determination of the jury, and where the evidence and the propriety of the verdict depends upon the weight to be given to the testimony of the respective witnesses, and the inferences to be drawn from the facts proven, and from the conduct of the parties, a new trial will not be granted, except for clear and manifest error in the rulings of the court. Wood v. Gibbs, 86 Miss., 559.
Upon the whole, we do not think the court below erred in overruling the motion for a new trial.
The judgment should be affirmed.
SiMRALii, J., delivered the opinion of the court on the reargument.
It is the duty of a railroad company in laying its roadbed across a stream, to so construct it as to allow a free passage for the water. If trestles, sluices or culverts are adopted, they should be placed so as not to needlessly impede the flow of the current. The state, in the exercise of its power of eminent domain, grants, upon certain terms, the authority to the company to enter upon the lands of the citizens and appropriate so much as may be needed for the use of the road. But in making that appropriation, no useless or avoidable damage must be done to the adjacent lands. Plainly, if the defendant had filled up the crossing of Lamar creek, or, by insufficient or inappropriate structures, had caused the overflow of the plaintiff’s field, it would be liable for damages for the injury, unless the -plaintiff, or those from whom he purchased, had acquiesced in and consented to the acts done or unless the plaintiff or his vendor had unequivocally abandoned the old channel, by a diversion of the water into a new one. Mason’s right to the continued flow of the water, in its-natural *247channel, could only be extinguished by operation of law, the act of God, or the act of himself. Co. Litt., 146, 147; Taylor v. Hampton, 4 McCord, 101. If the abandonment or extinguishment be predicated on the act of the party, something must be done absolutely destructive of the right, or which is incompatible with its exercise. Illustrations are given by the learned judge in 4 McCord, supra: “ If a person be the owner of a house with ancient lights, which no person has a right to obstruct; if he erect a house or put up a wall directly covering his windows, has he not extinguished his light himself as effectually as if he had blown out his candle ? ” Chancellor Kent says that the cessation to use the right will destroy it, provided the discontinuance be absolute and decisive, and unaccompanied with any intention to resume it within a reasonable time. 8 Kent Com., 130; Corning v. Gould, 16 Wend., 531.
With what intention the ditch was dug, is an important inquiry. Was it designed to change completely the channel of the creek ? or was it auxiliary to the natural channel, to aid in the quick passage of the water into Gray’s creek? Was the cutting of that ditch an unequivocal and decisive act, evincing a purpose to abandon the old channel, and thus releasing the defendant from the obligation to keep it open at its crossing? These inquiries ought to have been left to the jury. The thing done by Mason was not of that decisive and unequivocal character, as that the law could pronounce as to its effect.
Boykin owned the land in 1852, and sold to Mason in 1855. At that time there was a hillside ditch along the western side of the valley ; from this a ditch was cut within 100 feet of the railroad, and continued parallel with the railroad, intersecting Lamar creek, near the mouth of Gray’s creek. The trestle built in 1865, from 80 to 100 feet in width, somewhat obstructed the stream and caused the channel to begin to fill up with sand, above and southwardly. One or two years afterwards, Mason extended the ditch cut by Boykin, to Lamar creek, on the south, This was done in order to repair the defective draining caused by the ob*248struction. In 1861, the defendant put an embankment in place •of the trestles, and a culvert four feet in diameter.- In times of high water this opening was wholly inadequate to the sufficient flow of the water, and deposits were rapidly made. The testimony tends to show that prior to 1861, as the water proved more and more difficult to pass under the railroad, Mason, by ditches, attempted to provide that mode for their escape. These seem to have answered the purpose reasonably well, until the trestle was filled up with dirt, and an insufficient culvert built. After that the damage by overflow and deposit of sand was rapid and continuous.
The testimony on this point, instead of proving an abandonment or other extinguishment of right, tends to prove the use of artificial means adequate to relieve his land, which, but for the embankment. and small sluiceway, would have been sufficient. The defendant does not claim a license, but relies on the conduct of Mason. That should have been referred to a jury to pass upon its quality and force. The plaintiff had, in a series of instructions in various forms of expressions, presented the idea to the jury, that if the defendant had, since 1861, by the negligent repair of its roadbed, by filling up the channel of Lamar creek at its crossing, or by unsuitable structures at Gray’s creek, causing the water to back up and overflow, or by constructing a breakwater, or leaving an insufficient opening for the passage of the water under its roadbed, then the defendant would be liable for damage to the plaintiff’s land in consequence thereof.
The plaintiff’s 10th instruction imposes a qualification on the rules of law laid down in the prior charges, which informs the jury that the defendant is not responsible for the.consequences of the acts, or any of them, if Mason assented thereto in fact or by implication, or contributed thereto by his own negligence.
Express consent or implied assent waives the original right. Implied consent is manifested by some act done by Mason, which is absolutely incompatible with the right claimed, and which amounts in its effect to an extinguishment or abandonment of it. *249The act must be accompanied with an intention to abandon permanently. Ang. on Serv. and Ease., 632, 633. The effect of a cesser of use, coupled with an act clearly indicative of an intention to abandon the right, would be the same as a release. Ang. on Water Cour., § 243.
The act relied upon by the defendant as implying an assent by Mason to the erection at Lamar creek crossing, and as evincing an abandonment or extinguishment of his right, is the diversion of the stream into a new channel. To work that consequence there must be also an intention permanently to abandon the old channel. If the diversion was made with an intent to make it permanent, then within the sense of the 10th instruction there was an implied assent of Mason that the defendant might treat the old channel as abandoned, and they might repair their road bed on that assumption.
The 15th prayer for instruction, refused by the court, embodied the same idea, but in different language, but perhaps in terms too broad to present the true proposition of law applicable to the testimony. It affirms a right in the defendant to put the obstructions complained of across the channel, if before that was done “ the plaintiff himself had diverted said watercourse, and caused it to run in a different channel on his own land,” etc. The instruction assumes that the diversion was ipso facto an extinguishment or abandonment, and did not present the point to be inquired into by the jury, whether this act was intended to work that result.
It might, in another aspect, have confused and misled them, by a suggestion that but little importance should be attached to that position of the testimony tending to show that the new channel was intended to be merely in aid of the old.
Manifestly the jury placed their verdict on the testimony that the obstructions at Lamar creek crossing caused the damage, and that Mason had not expressly, nor by any act of his, impliedly waived, abandoned or extinguished his right to the water passage under the roadbed.
They accepted that testimony as the true explanation and cause *250of the injury to the land, and rejected that which referred it to the deposit of sand, etc.
After a second review of the instructions and the testimony, it seems to me that the law necessary to guide the jury in every view of the testimony was expounded to them.
That substantially the true rule embodied in the 15th prayer is contained in the 10th charge for the plaintiff, and that the 15th prayer, if given, might have had the effect of confusing the jury, for the reason above stated.
The verdict is supported by those witnesses upon whom the jury relied as furnishing an explanation of the causes of the injury.
Other witnesses referred the injury to other causes. It was the province of the jury to decide between them.
I am of opinion that the verdict and judgment should stand.