By the Court,
We do not feel called upon to decide whether the judge decided correctly or not in refusing to permit Stone, one of the defendants, to testify in behalf of his co-defendants. It appears that he was offered as
As a more comprehensive provision has since been adopted by the legislature upon this subject, and as we are compelled to reverse the judgment on another ground, it would answer no useful purpose to decide this question. It appears by the bill of exceptions that the judge charged the jury, among other things, that if they found the plaintiff was injured by the carelessness or negligence of the defendant it was not necessary for the plaintiff in the first instance to negative carelessness or negligence on his own part; that the burden of proof was on the plaintiff, but that proof of injury by or through the carelessness of the defendants would make out a prima facie case. To this ruling the defendants excepted. We think this instruction of the judge was erroneous. The jury were in effect instructed that it need not be proved, to .entitle the plaintiff to recover, that his own carelessness did not contribute to produce the injury which he sustained. This we suppose to be contrary to the authorities. See the case of Lane vs. Crombie, 12 Pick., 176, and the cases there referred to. This case seems to have been well considered by the court, and upon looking at the cases referred to in the opinion, as well as others which we have consulted, we are satisfied that the conclusion of the court was correct. We therefore think it was necessary for the respondent, in order to make out a prima facie case, in the first instance to prove, not only that the injury in question arose from the carelessness or negligence of the appellants, or their servant, but also that his own carelessness or negligence did not contribute to it. We are also of the opinion, that the charge of the court upon this point was material and calculated to mislead the jury to the prejudice of the appellants.
The judgment of the county court must therefore be reversed and a new trial ordered.