In this case plaintiff in error presents eight (8) questions for our determination. We have considered the first, second, third, fifth, sixth and eighth questions stated in connection with the record and find no reversible error disclosed. The fourth and seventh questions are as follows:
"4. In an action from wrongful death, with a plea of contributory negligence, is an instruction proper which states `That defense assumes that the defendant itself was negligent as alleged, but says that the plaintiff's husband was also negligent, and that his negligence contributed proximately to the accident or injury, AND NOT THE NEGLIGENCE OF THE DEFENDANT.'"
"7. Is it reversible error for the trial court in charging the jury to instruct them that the defendant bases its defense upon matters set up in its pleas, then briefly stating the substance of all the special pleas but omitting the general issue and concluding with the following words: *Page 66
"`The burden of proving those things (is) on the defendant and if it fails to prove them as alleged by a preponderance of the evidence you will find for the plaintiff,' thus throwing the burden of proof on the defendant to establish all of its pleas before the jury will be entitled to find for the defendant?"
The lower court answered the fourth question in the affirmative and the seventh question in the negative. Both answers were erroneous.
The charge or instruction to the jury which is complained of was as follows:
"Contributory negligence means something more than merely being negligent. That defense assumes that the defendant itself was negligent as alleged, but says that the plaintiff's husband was also negligent, and that his negligence contributed proximately to the accident or injury, and not the negligence of the defendant. As I said before, it is not sufficient to show that plaintiff's husband was negligent in some respect, but the evidence must go further and show that it was his own negligence that proximately caused the injury. If the evidence in this case does not go that far, but may show some slight negligence on his part, it would be your duty to find for the plaintiff on that issue."
This charge is confusing and directly conflicting. It correctly states that by a plea of contributory negligence the "defense assumes that the defendant itself was negligent as alleged but says that the plaintiff's husband was also negligent, and that his negligence contributed proximately to the accident or injury." Then it incorrectly states "and not the negligence of the defendant." Now the plea of contributory negligence does not mean that the defendant says that its negligence did not also contribute to the injury to *Page 67 the plaintiff. The plea of contributory negligence means that the defendant not denying its own negligence asserts that the negligence of the plaintiff contributed along with the negligence of the defendant to the injury of plaintiff and under such plea it is not necessary for the defendant to prove that his negligence did not contribute to the accident or injury but his proof is required only to go so far as to show that although the negligence of the defendant contributed proximately to the accident and injury that the plaintiff was also guilty of negligence which contributed proximately to the accident and injury.
The remainder of the quoted charge only emphasizes the error and confusion when the court went on to say, "it is not sufficient to show that plaintiff's husband was negligent in some respects but the evidence must go further and show that it was his own negligence that proximately caused the injury."
The necessary import of this language was that the jury was instructed that under the plea of contributory negligence the burden was on the defendant to show that the negligence of the plaintiff was the sole proximate cause of the injury. The giving of that charge constituted reversible error.
The charge complained of in the seventh question was as follows:
"2. The defendant bases its defenses upon the matters set up in its pleas, namely; that plaintiff's husband's own negligence was the proximate cause of his injury and death which in law is called contributory negligence; and that he assumed the risk of the alleged defective machinery by working with it, with knowledge of its defective condition, and of the risk, if any, in working with it, this is called assumption of risk; and that there was an agreement between *Page 68 plaintiff's husband and the defendant company that defendant would cover all the employees including plaintiff's husband with insurance, and that the insurance money in case of injury or death of the plaintiff's husband would go to his beneficiary as a settlement in full for all claim against the defendant on account of such injury or death. Plaintiff denies that her husband was negligent, or that any negligence on his part was the proximate cause of the injury. She also denies that her husband knowingly assumed the risk of the alleged undertaking he was working at. She also denies that there was any agreement between her husband and the defendant about the insurance such as claimed by the defendant. These denials throw the burden of proving those things on the defendant, and if it fails to prove them as alleged by a preponderance of the evidence, you will find for the plaintiff."
The infirmity of this charge is found in the language.
"These denials throw the burden of proving those things on the defendant and if it fails to prove them as alleged by a preponderance of the evidence, you will find for the plaintiff." That language is confusing and misleading. The defendant was not required, if it proved its plea of contributory negligence, to prove anything else. If it proved the assumption of risk, then it was not required to prove contributory negligence. The reasonable construction of the charge as given is that by the denials mentioned the burden of proof is thrown on the defendant to prove all that has been denied and, if he fails to prove them, as alleged by preponderance of the evidence, the jury should find for the plaintiff. (Emphasis ours.)
The record shows that in the trial of this case close questions were presented to the jury for their determination and upon which determination they were to base their verdict. *Page 69 Therefore, we cannot say that the use of improper, confusing or misleading language in the instructions given by the court to the jury, though erroneous, were harmless. It follows, therefore, that because of the giving of these erroneous instructions the judgment must be reversed and the cause remanded for new trial.
It is so ordered.
Reversed and remanded.
ELLIS, P.J., and TERRELL, J., concur.
WHITFIELD, C.J., and BROWN, J., concur in the opinion and judgment.
DAVIS, J., concurs specially.