The opinion
McNEILL, J.
(specially concurring). It is
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urged that the defense of contributory negligence must be submitted to the jury by reason of section 6, art. '23, of the state Constitution, which provides as follows:
“The defense of contributory negligence or of assumption of risk shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury.”
Issues of fact are triable to a jury in law actions. The issues are joined by the pleadings. To support the issues, evidence must be presented. In actionable negligence three essentials must exist: (1) A duty owing; (2) failure to perform that duty; and. (3) injury resulting therefrom.
■Negligence is not presumed, but must be proved. Contributory negligence is an affirmative defense, and the burden of proof to establish such negligence is upon the defendant unless the evidence of the plaintiff establishes the same. If the evidence, on a material issue, such as contributory negligence, is not conflicting, and reasonable men cannot differ in the inferences or conclusions which may be drawn therefrom as to what course of conduct an ordinarily prudent person would pursue, no issue of fact is presented which requires - the submission thereof to the jury.
Huddy Encl. Auto Law, 17, 18, page 278, section 140, announces this rule:
“It is only where no fact is left in doubt and no deduction or inference other than negligence can be drawn by the jury from the evidence, that a court can say as a matter of law that, contributory negligence is established. In such action a nonsuit ox-directed verdict is proper. * * *
“Where the evidence will not support a verdict for defendant on the issues of contributory negligence, it is proper that we withdraw that issue from the consideration of the jury.”
See, also, section 178, p. 374, Id.
If any doubt should exist, or there be found reasonable doubt, 'or fair debate, or if different minds might reasonably arrive at different conclusions on the question of contributory negligence, such question, in all such cases, should be submitted to the jury, but not otherwise. If primary negligence has not been established, it is clear that there can be no issue on the question of contributory negligence, though pleaded as an affirmative defense, and it becomes the duty of the trial court to direct a verdict upon request. If no issue is raised on the qxxestion of contributory negligence, though pleaded so as to admit ground of fair debate or propriety of a difference of opinion from the facts and circumstances as shown by the record and all inferences and conclusions therefrom, then it likewise becomes the duty of the trial court to disregard the plea of affirmative defense of contributory negligence.
In the instant case the measure of time of questionable action appears within the splitting of seconds.
It is my opinion that there has been sxxbmitted no debatable evidence on the question of contributory negligence.