Opinion op the court by

Affirming.

The plaintiff below and the appellee here filed his petition in the Campbell circuit court on the 10th of March, 1894, alleging that on -the 14th day of March, 1893, while driving a horse attached to a wagon over the central railway bridge, from the city of Newport to Cincinnati, a car belonging to defendant, while running over said bridge in the same direction, was operated by the employes of said company in such a negligent and reckless manner that said car ran against the wagon driven by the plaintiff, with great violence, forcing the wagon and horse to one side, breaking the wagon and throwing the plaintiff on the floor of the bridge so as to break his leg and to inflict on him very serious injuries, from which he was confined for at least five months thereafter.

The defendant, in its answer, denied all negligence and carelessness, and, in fact, all the affirmative allegations of plaintiff’s petition, and alleged in a second paragraph that if the plaintiff received all the injuries complained of by him, same were caused and received wholly, and through, and by reason of his own negligence and carelessness,. in that plaintiff was driving a horse and wagon in the regular driveway on the bridge built and set apart by the corporation for the use of wagons and teams, and that when the car of defendant was on the track set apart for the use of cars, and when said car was almost past said horse and' *887wagon then being driven by plaintiff, and there being at the time ample room for its passage without collision, plaintiff carelessly and negligently and recklessly pulled his' horse toward the car, and ran the wagon against the side of the car, and thereby caused the horse to break loose from the wagon, and that plaintiff was pulled from the wagon by the horse and thrown upon the floor of the bridge, by which he received the injuries complained of.

There was a reply denying the allegations of the second paragraph. The plaintiff and his witnesses proved the facts of the collision substantially as charged in the petition, whilst the defendant, on the other hand, by the conductor and motorman proved the collision to have occurred substantially as charged in the answer. The jury returned a verdict of $2,000 in favor of plaintiff, upon which judgment was entered, and this appeal is prosecuted to reverse that judgment. A number of errors are assigned by appellant. The first is, that the court erred in permitting the two attorneys of plaintiff to testify in rebuttal about their examination and inspection of a car belonging to appellant, more than a year after the accident; second, error in refusing instructions asked by appellant; third, errors in instructions given by the court; fourth, that the judgment was against the law and evidence.

It had been developed in the evidence of the employes of defendant that the car which was involved in the collision- was a closed winter car of large size, No. 35, and the motorman and conductor testified that right in the center of the car, over the figures 35 — which was the number of the car — there was a mark or indentation showing where the wheel of the wagon driven by appellee had struck. This fact was testified to by a number of witnesses for appellant. The testimony complained of was to the effect that *888the witnesses had examined a car, numbered 35, of the same general description as that which was proven to have collided with the wagon of plaintiff, and marked in the same way and running over the same lines, and that no such indentation as testified to by the witnesses for appellant were on the sides of the car. These witnesses, it is true, did not positively identify the car as the identical one which was being operated at the date of the collision, but it seems to us that this is circumstantial evidence admissible to go to the jury as rebutting testimony. Certainly it was very easy for the company, with the motorman and conductor both testifying at the trial, to have shown that it was not the same car, or that the indentation had been removed, if such had been the fact.

2. As to the instructions given by the court: By instruction No. 1 the jury is told that if they believe from the evidence that the collision between the wagon driven by plaintiff and the defendant’s car occurred by the said car running into the wagon as it was being driven off the track on which the car was running, they will find for the plaintiff. And by the second paragraph of the instruction they were told that if they find from the evidence that the said wagon was completely off the tracks, and the collision resulted from the wagon running towards the car and coming-in contact with it, they will find for defendant. It seems to us that this instruction gives, in the language of the learned counsel for appellant, in a nutshell, the whole law of the case.

The plaintiff and defendant have two distinct and independent theories, which are contradictory in themselves, as to the manner in which the accident occurred, and each supports its contention by evidence which is as conflicting- as the theories on which they proceed. If appellee is right, *889that the collision occurred by the car running into the wagon as it was being driven off the track, they are clearly liable, because the testimony of appellant clearly shows that they were in plain view of the wagon driven by the appellee,' and that he saw the boy sitting in the wagon, and that he rang the gong once or twice when the car was twenty-five or thirty feet back of the wagon. He says: “I never noticed him looking round; I caught him sudden.” It is evident that if the car struck the wagon as it was being-driven off the track of the railway, it was a case of pure negligence on the part of appellant, which authorized the instruction to find for plaintiff. If, on the other hand, the wagon was not on the railway track at all, but was on the wagon road between the railway tracks on the bridge, ánd the collision occurred, as proven by the testimony of the defendant, by driving the wagon against the car when they were both traveling in the same direction, it was wholly the fault of plaintiff, and the agents of the defendant who were operating the said car could have done nothing to have avoided the accident, and the defendant in that state of case was entitled to an instruction to find for it.

The instruction, in apt and pointed language, submits to the jury for their determination the question of fact upon which the right of recovery turned. We do not think that the law of contributory negligence applies in this case, “as there can be no contributory negligence on the part of the plaintiff except where there has been negligence on the part of the defendant. Contributory negligence exists only when the negligence of both parties has combined and concurred in producing the injury.” There is nothing in the testimony either of plaintiff or defendant tending to establish this condition. The instructions asked for by the defendant, and overruled by the court, are all based upon this idea of con-*890tributary negligence, and, while most of them are right as abstract propositions of law, they were properly overruled in this case, as there was no evidence on which to base them. As to the contention of the appellant, that the judgment was against the evidence, it has been frequently decided by this court that a verdict of a properly instructed jury will not be set aside upon a finding of fact, unless it is flagrantly against the weight of. evidence. If the testimony of appellee is true, and the jury seem to have so found, we think that the verdict was amply supported by the proof, and that damage given was not excessive. Wherefore the judgment is affirmed.

Petition for rehearing by appellant overruled.