E. 258; Gibbons v. Ry., 155 Pa. 279, 26 Atl. 417. Contributory negligence has been held to be no defence where defendant's gence was reckless or wanton; Kansas P. R. Co. v. Whipple, 39 Kan. 531, 18 Pac. 730.
Contributory negligence is a good defence to an action for damages for a personal in jury ; and it is immaterial to what extent it is proven, provided it contributed to the in jury ; Kyne v. R. Co., 8 Roust. (Del.) 185, 14 Atl. 922; Gerity's Adm'x v. Haley, 29 W. Va. 98, 11 S. E. 901; in order to bar a recovery, the contributory negligence must have been a proximate cause of the injury ; Cornwall v. R. Co., 97 N. C. 11, 2 S. E. 659 ; Virginia M. R. Co. v. White, 84 Va. 498, 5 S. E. 573, 10 Am. St. Rep. 874.
In some cases it has been held that the plaintiff must show affirmatively that he was in the exercise of due care, when the injury happened; Kepperly v. Ramsden, 83 Ill. 354; Beers v. R. Co., 19 Conn. 566 ; Murphy v. Deane, 101 Mass. 455, 3 Am. Rep. 390 ; Mosher v. Smithfield, 84 Me. 334, 24 Atl. 876. This is frequently termed the Illinois rule. Probably the proof need not be direct, but may be inferred from the circumstances of the case ; Mayo v. R. Co., 104 Mass. 137 ; 2 Thomp. Negl. 1178, note. In other states, contributory negligence is a matter of de fence, the burden of proving which is on the defendant ; Hocum v. Weitherick, 2,2 Minn. 152; Hicks R. Co., 65 Mo. 34; Baltimore & 0. R. . v. Whitacre, 35 Ohio St. 627; Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558; Bromley v. R. Co., 95 Ala. 397, 11 South. 341; Augusta v. Hudson, 88 Ga. 599, 15 S. B. 678; Washington & G. R. Co. v. Harmon, 147 U. S. 571, 13 Sup. Ct. 557, 37 L. Ed. 284; Baker v. Gas Co., 157 Pa. 593, 27 Atl. 789, where the cases are dis cussed. But even in these courts, if the plaintiff's own showing disclose contributory negligence, he cannot recover. The rule that a plaintiff cannot recover, if himself guilty of contributory negligence, applies where the party inflicting the injury is not guilty of negligence after the position of the injured party was discovered, or, by the exercise then of reasonable care, could have been dis covered; Texas & P. R. Co. v. Nolan, 62 Fed.
552, 11 C. C. A. 202, 23 U. S. App. 443.
Negligence of the defendant's employs in failing to whistle or ring a bell at a crossing is no excuse for contributory negligence of the plaintiff in failing to use his senses ; Carlson v. R. Co., 96 Minn. 504, 105 N. W. 555, 4 L. R. A. (N. S.) 349, 113 Am. St. Rep. 655 ; and continuing contributory negligence will bar a recovery by the plaintiff, although the defendant ought to have discovered, but in fact did not discover, his peril in time to prevent the accident; Dyerson v. R. Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207.
It is not contributory negligence to ride upon the platform of a street car in spite of a notice that it is dangerous to do so, and notwithstanding the fact that there was room at the time within the car, where it was the custom of the company to overload its cars so that passengers ordinarily rode upon the platform ; Capital Traction Co. v. Brown, 29 App. D. C. 473 ; but one who gives up his place in a street car to a woman and rides upon the platform where he is subse quently injured, forfeits the advantage of the presumption of negligence on the part the defendant company ; Paterson v. Rapid ' Transit Co., 218 Pa. 359, 67 Atl. 616, 12 L. R. A. (N. S.) 839. A spectator at a baseball game, who elects to occupy an unprotected seat, cannot recover for an injury ; Crane v. Baseball Co., 168 Mo. App. 301, 153 S. W. 1076.
Negligence is only deemed contributory when it is the proximate cause of the injury ; Smith v. Ry. & Lighting Co., 80 Conn. 268, 67 Atl. 888, 17 L. R. A. (N. S.) 707.
The fact that the plaintiff lived near a powder magazine, with knowledge of the danger, does not constitute contributory ligence ; Hazard Powder Co. v. Volger, 58 Fed. 152, 7 C. C. A. 130, 12 U. S. App. 665. It has been said that the true rule is that the onus of proving contributory negligence rests in the first instance on the defendant, although the plaintiff may disclose upon his own case such evidence of it as to relieve the defendant of that primary obligation and shift to the plaintiff the onus of displac ing the effect of his own evidence ; 12 Q. B. D. 71.