The damage caused must arise from in- advertence. If it be intentional, a suit for negligence will not lie; the remedy is in trespass and not case. One negligent person cannot escape lia- bility for his negligence because the neg- ligence of another concurred in producing the injury; 119 Ind. 583. Proof of negligence. The first requisite for the plaintiff is to show the existence of the duty which he alleges has not been per- formed, and then he must show a failure to observe this duty; that is, he must es- tablish negligence on the defendant's part. This is an affirmative fact, the presump- tion always being, until the contrary ap- pears, that every man will perform his duty; Cooley, Torts 659. It is not suffi- cient for the plaintiff to prove a state of facts consistent with the accident having been caused either by the negligence of the defendant or by that of the person injured. He must prove that it was caused by the defendant; 12 App. Cas. 41. In many cases evidence of the injury done makes out a prima facie case of negligence on the de- fendant's part; for instance, when a bailee returns in an injured condition an article loaned to him, or when a passenger on a railway 'train is injured without fault on his part. As a general rule this liability cannot be avoided by stipulation; thus, a common car- rier will not be permitted to contract for immunity from the results of its own neg- ligence or that of its agents: 4 Ohio St. 362; 114 Pa. 523; 111 N. C. 482: 94 Ind. 281; 34 Ga. 315; 90 Tenn. 17; 2 Hill N. Y. 623; 101 Mo. 631; 84 Ill. 239; 14 Bush 590; 89 Ala. 294; 3 Col. 280; 41 Conn. 333; 4 Sandf. 136; 102 Mass. 552; 26 Gratt. 328; 3 Kan. 205; 69 Miss. 191; 9 Ir. R. C. L. 20; 75 Tex. 300; 4 Ben. 271; this may be con- sidered as the rule generally followed in this country, in which the leading case is Railroad Co. v. Lockwood, 17 Wall. 357, where the authorities are collected by Bradley, J. In England, however, the courts seem to find no conclusive objection to sustaining such contracts when specially made; L. R. 10 Q. B. 212; 5 East 438; 23 U. C. Q. B. 600; and in New York, though the contracts are upheld, it is only when expressed in clear and specific language and not by mere general words in the usual printed bills of lading or receipts; 1 Jones & S. 423; 19 id. 196, following 56 N. Y. 168; 71 id. 180. So the liability may be limited in consideration of a reduced rate of transportation; 86 Va. 481; L. R. 8 H. L. 703; L. R. 10 Q. B. D. 250; 18 С. В. 805; 29 L. J. Ex. 441; or by special contract, for all negligence except gross; 42 Ill. App. 322. Such a contract, made in New York, was enforced in an action in Pennsylvania according to the law of New York; 128 Pa. 217. See 35 A. & E. R. Cas. 672; COMMON CARRIERS; FLAG. By an act of February 13, 1893 (Harter Act), common carriers by land or sea can- not exempt themselves from responsibility for loss or damage arising from the negli gence of their own servants, and any stipu- lation for such exemption is contrary to public policy and void. The Harter Act (q. v.) provides that if the owner of a vessel transporting merchandise to or from any port in the United States shall exercise due diligence to make the said vessel in all respects sea worthy, when properly manned, etc., neither the vessel, or her owner or charterer, shall be liable for errors in navi- gation or in the management of the vessel. In England, except so far as controlled by the railway and canal traffic act of 1854, carriers can exempt themselves from re- sponsibility for loss occasioned by the negligence of servants; 42 Ch. D. 321; 168 U. S. 116. Taking precaution after an accident against the future is not to be construed as an admission of responsibility for the past; 20 U. S. App. 326; so a subsequent altera- tion or repair of the machine which caused an injury is not evidence of negligence in its original construction; 144 U. S. 202. There is a rule exempting public chari- table corporations from liability for negli- gence, but the Young Men's Christian As- sociation is not within the rule; 165 Mass. 280. Law or fact. It is generally said that the question of negligence is a mixed question of law and fact, to be decided by the court when the facts are undisputed or conclu- sively proved, but not to be withdrawn from the jury when the facts are disputed, and the evidence is conflicting: Whart. Negl. § 420; 134 Ind. 269; see 17 R. I. 658; 36 W. Va. 329. In the great majority of cases the question is left to the jury to determine whether the defendant's conduct was reasonable under the circumstances. When a well-recognized legal duty rested upon the plaintiff, it is usual for the court to define this duty to the jury, and leave to it the question as to whether the plaintiff fulfilled this duty. More recently the courts have drawn a distinction between what is evidence of negligence for the jury and what is negligence per se, and therefore a question of law for the court, and the tend- enc