¶1The opinion of the court was delivered, October 29th 1868, by
¶21. We have no hesitation in determining that the deposition of Eliza D. Ham was competent testimony, without showing the service of, or attempting to serve, a subpoena upon her. In her examination she stated her residence to be in the state of New York, at Saratoga. It thus appears that she was but temporarily in Crawford county when her deposition was taken, and, at all events, that her residence was out of the jurisdiction of the court. Both parties knew this, for she was cross-examined by the plaintiff’s attorney, as we learn, and her deposition in which this was stated was on file. The defendant might rely on the presumption that she was out of the jurisdiction of the court until there was some good reason to presume the contrary. This was not shown, and to take out a subpoena for her under such circumstances, would have been a vain act, which the law never requires the performance of. This view is fully sustained by Pennock v. Freeman, 1 Watts 401, if any authority were needed. This assignment of error is therefore sustained.
¶32. We likewise think the answer of the learned judge to the plaintiff’s point was not well considered. It is the duty of a plaintiff seeking to recover, where the gravamen of the action is the alleged negligence of the defendant, to show a case clear of contributory negligence on his own part. In other words, he must establish a primá facie cause of action, resulting exclusively from the negligence and wrong of the defendant, before the latter need answer at all. The learned judge went too far, therefore, we think, in holding, as he did in effect, in his answer to the point, that the plaintiff was not holden to such a rule, and that the defendant must disprove care, and thus establish negligence *214on part of the plaintiff. This would be so in a primá facie case on part of the plaintiff. But he should have so answered the point that the jury might have been left free to consider the defects in the plaintiff’s case. If ever there was a case in which this was a duty, it was in this case. The accident occurred in open day, on a broad public highway, by a rider running his horse so hard upon the shaft of a buggy, driven at an ordinary gait, as instantly to kill the horse, though there was plenty of room to pass without obstruction. We think the charge in the particular complained of, was not an adequate presentation of the law, and that the error is sustained.
¶43. We also think there was error in the answer of the court to the defendant’s 3d point. It was certainly true, as the point claimed, “ that the defendant had a right to be on the public highway, and if the jury believed that at the time of the alleged accident he was travelling in an ordinary manner, he was not liable for an injury resulting from such use of the public thoroughfare;” yet this was negatived by the learned judge, for what reason we do not see. This was error, therefore, which needs no argument to prove.
¶5' For these reasons the judgment is reversed, and a venire facias de novo is awarded.