¶1(dissenting).
¶2I dissent. Although the majority have not prepared a separate syllabus adjudicating the challenged instruction set forth in the majority opinion as being proper they have held, as a point adjudicated in the opinion, that it was not error for the court to give the instruction set forth in the third specification of error. The instruction which is challenged is set forth in full in the majority opinion. Succinctly stated, it instructs the jury that the defendants have the burden of proving (1) that the work [engaged in] upon the surface of the highway was necessary; and (2) that the work was carried on in a safe and prudent manner. The majority considered the question on the basis that an affirmative defense was pleaded. I think this approach was erroneous. I do not find that an affirmative defense of exemption by statute from liability is presented by the pleadings or the' evidence introduced at the trial.
¶3I feel that the instruction was not only erroneous but that it was also prejudicial.
¶4The 1963 Legislative Assembly enacted Chapter 283 which amended and reenacted Section 39-07-05, N.D.C.C. The amendment became effective July 1, 1963, just prior to the date of the accident in this case. The statute as amended exempted the defendants from the statutory rules of the road as provided in Chapters 39-08 through 39-13 and Chapter 39-21, N.D.C.C., if the driver of the county vehicle was “actually engaged in work upon the surface of a highway” or engaged in “other procedures that are necessary” and if the work or procedures were being carried on in a “safe and prudent manner.” The statute was again amended in 1965, Chapter 266, Section 2, 1965 Session Laws, and the parts which have given us a problem in this case were omitted.
¶5The majority have quoted from the first Linington opinion (146 N.W.2d 45) the following paragraph which they use in support of their holding:
“In defending the procedures which were followed in operating the county grader on the left side of the highway, it was necessary for the defendant in this case to show that such equipment was actually engaged in work upon the surface of the highway at the time of the accident, and that such work and procedures were necessary and were being ‘carried on in a safe and prudent manner.’ ”
¶6The paragraph was obiter dictum in that case. It was not a point of law adjudicated and is not contained as a part of the syllabus of that opinion. Syllabus No. 5 in the first Linington case I believe correctly states the law. It provides:
“The question of negligence is always a question for the jury, unless on the whole case reasonable men can draw but one inference therefrom. Whether operating a grader up an incline in the highway on the left side of the road was ‘safe and prudent’ under the circumstances was a question of fact for the jury.” [Emphasis added.]
¶7The same language is contained in the body of the opinion. It also contains a finding *499by this Court of the issue for determination by the jury. It is as follows:
“That issue was whether the operation by the maintainer in the manner in which it was being operated at the time was ‘safe and prudent.’ ” [Emphasis added.]
¶8Thus it is clear we defined the issue in the first appeal as I define it in this dissent.
¶9The construction placed upon the paragraph quoted above by the majority in this case does not harmonize with Syllabus No. S nor does it harmonize with the issue as we defined it in that case. The language employed in the first quote was unfortunate; it had no bearing on the decision in former appeal. Confusion has resulted because of the use of the words “to show,” which apparently was interpreted by the trial court and now by the majority of this Court to mean the defendant had the burden of proof to prove all three elements stated in support of their affirmative defense. This was not the intended construction of the language used in the former opinion. The defendant has not pleaded the exemption statute (39-07-05) as an affirmative defense. The affirmative allegations in the defendant’s answer merely constitutes a denial of plaintiff’s affirmative allegations.
¶10Examination of the pleadings and the evidence adduced at the trial discloses that the only issues presented are: Was the defendant negligent in the operation of the grader while it was engaged in work upon the surface of the highway because it was not being operated in a safe and prudent manner, and was such negligence, if any, a proximate cause of the plaintiff’s injuries?
¶11The plaintiff, by his complaint, alleges that the grader was being operated on the left half of the highway but it does not allege that under the rules of the road this was the wrong side of the highway nor does it allege that it was not engaged in work upon the surface of the highway, or that the work that it was engaged in was unnecessary. The gravamen of the plaintiff’s complaint is that while the grader was being operated upon the left half of the highway it was being operated “negligently and carelessly and in an unsafe and imprudent manner so that it collided with the motor vehicle in which the plaintiff was riding.” It is true the defendant, by its amended answer, alleges that the grader was engaged in maintaining the highway at the time of the collision and that the grading operation was carried on in the left or west lane of the highway, it also alleges that the grader was well marked with a red flag on a staff and was being operated legally and in a careful and prudent manner. By its answer the defendant has merely alleged the negative of the affirmative asserted by the plaintiff in his complaint.
¶12The statute (Section 39-07-05), as it existed at the time this accident occurred, clearly provided that the work upon the highway must be carried on in a “safe and prudent manner.” Negligence is the want of that degree of care required by the law. Sections 1-01-14 and 1-01-16, N.D.C.C. Every person is bound without contract to abstain from injuring the person or property of another (Section 9-10-01, N.D.C.C.) and everyone is responsible for injury caused to another person by the lack of ordinary care or skill in the management of his property or person except so far as the injured person willfully or by lack of ordinary care has brought the injury upon himself (Section 9-10-06, N.D.C.C.). Section 39-07-05 exempted the defendant in this case from the rules of the road but in so doing provided and required that the operation must be carried on in a “safe and prudent manner” as a substitute for the rules of the road. It is the claim of the plaintiff that the operation was not carried on in a safe and prudent manner and that, as a result, and without fault of the plaintiff, he was injured. No contention has been made by the plaintiff that the defendant was in violation of the rules of the road as provided by the statutes enumerated in 39-07-05 or that the defendant was not exempt from the rules of the road. The plaintiff *500has affirmatively alleged in his complaint and claimed by the evidence introduced the negative of the duty of “safe and prudent” operation placed upon the defendant by the statute (Section 39-07-05, N.D.C.C.) as it then existed, the converse of which can be shown under a general denial. A defendant, by specially pleading matter which he could prove under a denial of the plaintiff’s allegations, does not assume the burden of proof as to such matters. 31A C.J.S. Evidence § 104, p. 180.
¶13The plaintiff has the burden of proof to establish to the satisfaction of the jury that the grader was not being operated in a safe and prudent manner to establish his claim. The burden of proof does not shift and if the plaintiff has, by evidence, established a prima-facie case, the burden of going forward with the evidence, often referred to as the burden of evidence, shifts to the defendant. If the defendant can impair the prima-facie quality of the case against him the burden of evidence returns to the party having the burden of proof. This process continues until the stock of relevant facts is exhausted. Midland Oil & Royalty Co. v. Schuler, N.D., 126 N.W.2d 149; Guild v. More, 32 N.D. 432, 155 N.W. 44.
¶14The instruction, insofar as it places the burden of proof upon the defendant to prove careful and prudent operation of the grader, is erroneous and prejudicial. The defendant never has the burden of proving what he may show as a defense under a general denial. Midland Oil & Royalty Co. v. Schuler, supra; Wall v. Zeeb, N.D., 153 N.W.2d 779.
¶15The burden of proof as to the same issues cannot be placed on both sides. Carle v. Nelson, 145 Wis. 593, 130 N.W. 467; DeHart v. Jenkins, 211 N.C. 314, 190 S.E. 218.
¶16It was also error for the trial court to instruct that the defendant has the burden of proof to establish that the work upon the highway was necessary. Necessity of the work did not become an issue in the trial nor was it raised by the pleadings.
¶17The issues as developed by the pleadings and the evidence raised only one issue. Was the negligence of the defendant, if any, the proximate cause of the injuries sustained by the plaintiff? Upon this issue, the plaintiff has the burden of proof throughout the case, and to instruct the jury that the defendant has the burden to prove that it was not negligent by requiring it to prove safe and prudent operation was prejudicial and calculated to mislead the jury. Therefore, in my opinion a new trial should be granted.