285 Mass. 192 | Mass. | 1934
Lead Opinion
These are actions of tort to recover compensation for personal injuries alleged to have been sustained by the plaintiff, while a pedestrian crossing a street in Boston, through being struck because of the negligence of the female defendant (hereafter called the defendant) in operating an automobile owned by the other defendant. The plaintiff, the defendant and one other witness testified in considerable detail as to the circumstances of the accident. In some respects there was irreconcilable conflict between the testimony of the defendant and that of the other two eyewitnesses. There was evidence sufficient to support a finding of negligence of the operator of the automobile and of contributory negligence of the plaintiff. The cases were submitted to the jury and resulted in verdicts for the plaintiff. At the close of the evidence the defendants requested these instructions: “(2) There is no presumption that the plaintiff was in the exercise of due care. (3) Since all of the circumstances relating to the plaintiff’s conduct are in evidence, there is no presumption that he was in the exercise of due care.” These requests were not granted. The instructions, so far as material to these exceptions, were in these words: “There is a presumption that every person is in the exercise of due care .... When evidence is introduced . . . then the presumption fades away and the actual evidence . . . will control. . . . While Mr. Brown is presumed to have been in the exercise of due care, when the evidence comes in as to what he was doing, whether he was doing what a reasonably prudent person would do in crossing a thoroughfare which is travelled to the extent which this is, then it is for you to say, bearing in mind, of course, all the time the presumption, whether those facts show that he was not in the exercise of due care, and if he was not in the exercise of due care in
It is provided by G. L. (Ter. Ed.) c. 231, § 85, that “In all actions, civil or criminal, to recover damages for injuries to the person or property or for causing the death of a person, the person injured or killed shall be presumed to have been in the exercise of due care, and contributory negligence on his part shall be an affirmative defence to be set up in the answer and proved by the defendant.” This section, which originated in St. 1914, c. 553, made an important change in our law. This section joins two distinct propositions or rules of practice to be observed in the trial of the specified classes of actions. The first part creates a presumption of due care on the part of the person injured or killed. The second part makes the contributory negligence of such person an affirmative defence to be pleaded and proved. Both these propositions were new in the law of this Commonwealth. It was said respect
The requests for rulings were denied rightly. The first was directly contrary to the terms of the quoted statute. The second assumed as true facts which might or might not be proved. There was error in the charge as first given in that it required the presumption to be carried in mind
Exceptions overruled.
Concurrence Opinion
concurs in the result, but on a simple ground which can be stated briefly. A presumption is a rule of law which compels the conclusion that a fact exists, in the absence of some required quantity of evidence or degree of proof to the contrary. It is impossible to weigh a rule of law, or to attribute to it persuasive force as evidence of a fact. Therefore the opinion states what is now settled law in rejecting the theory that a presumption is evidence. Upon any other theory of presumptions that to his knowledge has ever been advanced, a presumption can have no greater effect than to control unless rebutted by proof to the contrary. Except for the presumption of legitimacy, most authorities give a presumption less effect. When the statute cast upon the defendant the burden of proving by a preponderance of the evidence contributory negligence on the part of the plaintiff, it did everything for the plaintiff that a presumption of his due care could do, and according to most authorities on the subject of presumptions it did more. The statutory presumption of due care, therefore, is wholly overshadowed by that burden of proof, and can have no practical effect. If it never had been created, or should be abolished, neither party would be a whit the better or the worse. The statutory presumption of due care is like a handkerchief thrown over something covered by a blanket also. Lisbon v. Lyman, 49 N. H. 553, 563. Board of Water Commissioners v. Robbins, 82 Conn. 623, 640. For this reason, if the burden of proof is correctly stated to the jury, there can be no reversible error in dealing with the presumption of due care, whether the judge adopts what seems the better course of refusing to mention it at all, or, as the judge did in this