dissenting:
I am unable to concur in this opimon and therefore dissent. While I do not wish to enter into an extended discussion of my views in all particulars, I do not believe the crossing involved in this ease was extra hazardous.
Insofar as the majority opinion holds that the instructions clearly state the law on contributory negligence I most emphatically disagree.
Mr. Justice Bottomly has quoted Instruction No. 22, and I wish to refer to that portion of it dealing with the doctrine of contributory neglgience, wherein the court instructed the jury: “* * * and if you further find that by reason of such failure of the defendants the plaintiff received the injuries complained of, and that he did not help to cause or bring about Ms injuries by negligence on his part; and you further find that the sole, proximate cause of his injuries was not the negligence of the driver of the car, which plaintiff owned and in which he was riding, then your verdict should be for the plaintiff and against the defendants.” Emphasis added. It will be noted that the court defiMtely told the jury that if they found that the sole, proximate cause of the injuries to the plaintiff was not the negligence of the driver of the car *502their verdict should be for the plaintiff and against the defendants.
In Instruction No. 26, the court states:
“You are instructed that on the issue of contributory negligence on the part of the plaintiff, owner of the automobile, and C. Natali, the driver thereof, the burden is upon the defendants to prove such contributory negligence by a preponderance of the evidence.
“If you should find that the plaintiff or Natali were in any manner negligent, such negligence would not bar plaintiff’s recovery herein unless you further find from the preponderance of the evidence that such negligence, if any, was a sole, proximate cause of the injuries, if any, which plaintiff sustained. ’ ’ Emphasis added.
Here, the court is instructing the jury that the negligence of the driver of the plaintiff’s car would not bar a recovery by the plaintiff unless such negligence was a sole, proximate cause of the injuries sustained by the plaintiff.
In Hightower v. Alley, 132 Mont. 349, 356, 318 Pac. (2d) 243, 248, the jury was instructed that if plaintiff’s negligence was a proximate cause of his injury and death such contributory negligence would be a complete defense to the action. The court there further instructed the jury that any negligent act or omission of the deceased which may have contributed remotely to his injury would not be such defense, if it was not an immediate and proximate cause of his injury and death. In holding that there was no conflict between these two instructions this court stated: “When considered together the two instructions make it clear that before contributory negligence of decedent would bar recovery it must contribute not remotely to his injury and death but immediately and as a proximate cause thereof.”
In the later case of Wolf v. Barry O’Leary, Inc., 132 Mont. 468, 318 Pac. (2d) 582, where an instruction was given which defined contributory negligence as such negligence as helped *503to produce the damages complained of and that if the plaintiff was guilty of any act of negligence that proximately caused or contributed to the damages complained of, then the plaintiff could not recover, this court held such instruction erroneous. We there stated on pages 473 and 474 of 132 Mont., at page 585 of 318 Pac. (2d) :
“Looking now to the instruction upon which the plaintiff predicates error, we find that the District Court in defining the causal relationship between the acts of plaintiff and the injury alleged utilized the words ‘helping’ and ‘contributing.’ This was misleading and incorrect. In Pilgeram v. Haas, 118 Mont. 431, 167 Pac. (2d) 339, 349, this court said: ‘In an action involving contributory negligence the court should soundly define it.’
“By utilizing the words ‘helping’ and ‘contributing’ the trial court misled the jury into believing that these were criteria upon which they could predicate contributory negligence. This was manifestly incorrect as illustrated by the aforementioned authorities. ‘Helping’ and ‘contributing’ have never been the standard set down by this court upon which to base a causal relationship. We have always adhered to the strict formula of ‘proximate cause.’ No less formula will suffice to give the jury a correct instruction on contributory negligence. The plaintiff’s fault does not affect her right of action, unless it proximately caused her injury. It must be a proximate cause, in the same sense in which the defendant’s negligence must have been a proximate cause in order to give any right of action. Plaintiff’s conduct must not only ‘contribute’ to the injury, but must ‘contribute’ as a proximate cause. Fulton v. Chouteau County Farmers’ Co., supra [98 Mont. 48, 37 Pac. (2d) 1025].
“By utilizing the words ‘helping’ and ‘contributing’ the trial court misled the jury and failed to soundly define contributory negligence. For that reason the jury might very well have based their verdict on the standard set up by the trial *504court rather than upon the true standard of ‘proximate cause.’ Therefore the instruction as given was prejudicial to the plaintiff.”
It is true that in Mihelich v. Butte Electric Ry., 85 Mont. 604, 281 Pac. 540, 546, this court used the following language:
“Liability for injury depends upon the causal connection between the negligence or fault and the catastrophe, and attaches only when the negligence of the party charged can be said to be the sole proximate cause of the injury, as between the plaintiff and the defendant — that cause which in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury and without which it would not have occurred. Kirby v. Oregon Short Line R. R., 59 Mont. 425, 197 Pac. 254; Wallace v. Chicago, etc., Ry., 48 Mont. 427, 138 Pac. 499; Fisher v. Butte Electric Ry., 72 Mont. 594, 235 Pac. 330; Id., 77 Mont. 85, 249 Pac. 1043.
“Thus negligence which cannot be traced as the proximate cause of the injury does not create liability, and, even though the defendant is shown to have been guilty of actionable negligence and it is shown that such negligence was not the sole proximate cause of the injury for the reason that the negligence of the plaintiff contributed as a proximate cause, no recovery may be had; but even here plaintiff’s own negligence will not bar a recovery unless it existed as a concurrent, co-operating proximate cause of the injury; 45 C. J. 942, and cases cited; Daniels v. Granite Bi-Metallic Consol. Min. Co., 56 Mont. 284, 184 Pac. 826. Thus it is clear that the key to liability is: What act or acts of negligence constitute the proximate cause of the injury, without which it would not have occurred? All other acts of negligence become immaterial.
“Presupposing, then, that both plaintiff and defendant are guilty of negligence and thereafter the plaintiff remains passive and oblivious to his danger, and the defendant, after discovering the perilous situation of the plaintiff, could have avoided the accident by the exercise of reasonable care but did not *505employ the means at his command to avoid it, there is a break in the sequence of events and defendant’s last act of negligence becomes the sole proximate cause of the injury, while his initial negligence and the primary negligence of the plaintiff become but remote causes thereof. 45 C. J. 988, and cases cited; Neary v. Northern Pac. Ry., 41 Mont. 480, 110 Pac. 226; Nehring v. Connecticut Co., 86 Conn. 109, 84 A. 301, 524, 45 L. R. A., N.S., 896, 902.”
The court there was addressing itself to the liability of the party charged with negligence and it is certainly true that in such case the proof must show that the sole, proximate cause of the injury is the negligence of the party charged. However, it does not follow that in order for contributory negligence to be a defense that it, too, must be a sole, proximate cause, it is sufficient in my opinion if it contributes as a proximate cause of the injury. I appreciate that the instructions must be read together and that all the law applicable to a given ease cannot be given in one or two instructions, but here while I concede that the court did correctly, in one of its instructions, define contributory negligence, it confused the doctrine by the instructions before referred to in that the court stated in one instance it must be the sole, proximate cause of the injuries to the plaintiff or it was not a defense. To my mind this places a burden upon the defendant in this action which is not warranted under the law. I believe the instructions on contributory negligence in this cause were extremely confusing and prejudicial to the defendant.
As to damages for loss of earning power, even counsel for plaintiff in his brief concedes there should have been more evidence on the matter of impairment of plaintiff’s earning capacity, but insists that plaintiff was not allowed to show it by reason of objections thereto and rulings by the court. In my view, on this record, plaintiff made no such effort and the record is barren of any competent evidence of loss of earning *506power, and that item should have been eliminated from the consideration of the .jury by proper instruction.
I would reverse the judgment and order a new trial.