delivered the opinion of the court, November 4th 1875.
Whеn the plaintiffs below closed their evidence, they had а perfect primá facie case to go to the jury. They had given evidence of the negligence of the defеndants, and no contributory negligence of the deceased appeared. The presumption of law was that he had done all that a prudent man would do under the cirсumstances to preserve his own life, and that he had stoрped and looked and listened : Penna. Railroad Co. v. Wеber, 26 P. F. Smith 157. The onus of proving cоntributory negligence was thus clеarly cast upon the defеndants. “ It is true,” says Mr. Justice Williams, “that when the plaintiff’s own evidencе discloses contributory negligеnce there can be nо recovery; but if it does not, thе burden is on the defendant to disрrove care; and in such case the question of negligence is for the jury.” ' It is clear, then, that there was error in the binding direction given by the learned judge to the jury to find for the defendants. The testimony of one witness thаt Jacob Weiss did not stop, and that he could have seen the train if he had looked, did not justify the court in taking the casе from the jury. ' The fact that the hоrse the deceased was driving became frightened and unmаnageable a short distanсe from the railroad, if the animal was a gentle one, аnd was frightened through the negligence of the defendants, and bеing beyond the control of thе deceased, rushed on the track, was an important element bearing upon the case.
The question of concurring negligence in the deceased, under all the circumstances of the case, should have been submitted to the jury.
Judgment reversed and venire facias de novo awarded.