The opinion
Douglas, J.,
concurring. I concur in the opinion of the Court that this case should be remanded in order that the essential fact of negligence may be found by verdict or agreement. In fact, I am somewhat inclined to think that the plaintiff is entitled to judgment on the facts agreed under the decision of this Court in Marcom v. Railroad, 126 N. C., 200 , where it is said: “The principles governing the case at bar are well settled. It is the duty of every railroad company to provide and maintain a safe road-bed, and its negligent failure to do so is negligence per se. * * * As the law places upon the company tíre positive duty of providing a safe track, including the incidental duties of inspection and repair, its unsafe condition, whether admitted or proved, of itself raises the presumption of negligence. This is always the case where there is a failure to perform a positive duty imposed by law. The burden of proving such a failure of legal duty rests upon the plaintiff, but when that fact is proved or admitted, the burden of proving all such *593 facts as are relied on by the defendant to excuse its failure, rests upon the defendant. Its plea, then, is in the nature of confession and avoidance.”
If it be contended that no presumption of negligence arises against the defendant from the naked fact of obstruction stated by the case agreed, there is certainly no> presumption in its favor. The landslide may not originally have been caused by the negligence of the defendant, but that would not excuse the failure of proper inspection, or negligently permitting the road bed to remain in a dangerous condition without repair and without warning, after its condition was or .might have been discovered by due diligence. In the view most favorable to the defendant, its negligence is an open question.