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even if the plaintiff had met his death in the accident and an action been brought by his personal representative against the defendant for negligently causing his death, we do not think, under the facts here shown, that such a case could properly be submitted to the jury, but are of the opinion that the court should hold, as a matter of law, that Mr. Gillett was guilty of contributory negligence. We think the fallacy of the argument of plaintiff's counsel lies in the fact that they assume that if it cannot be shown by the positive statement of any witness that the plaintiff did not look and did not listen before attempting to cross the track, it cannot then be said that there was evidence of negligence on his part sufficient to remove the presumption of due care. Such an assumption implies two things: First, that in a case where the presumption of due care is invoked, it cannot be rebutted by circumstantial evidence, however strong; second, that if it is established that plaintiff looked and listened, his conduct in attempting to cross ahead of the car cannot, under the circumstances, be said as a matter of law to have been negligent. There are decisions which may seem to lend support to counsel's position, and it may be profitable briefly to consider the principles involved and the typical cases upon the subject.
It is now quite generally held by the courts that a rebuttable or prima facie presumption has no weight as evidence. It serves to establish a prima facie case, but if challenged by rebutting evidence, the presumption cannot be weighed against the evidence. Supporting evidence must be introduced, and it then becomes a question of weighing the actual evidence introduced, without giving any evidential force to the presumption itself. In 1 Elliott on Evidence, $ 91, p. 114, it is said:
“It (the presumption) may be directly rebutted by
such evidence, or it may be shown thereby that it was never applicable to the particular facts, for it will be found that presumptions are usually very general in their nature, and lose their force and application when the specific facts of the case are shown;" —and further (8 93, p. 116):
“A presumption operates to relieve the party in whose favor it operates from going forward in argument or evidence, and serves the purpose of a prima facie case until the other party has gone forward with his evidence, but, in itself, it is not evidence, and involves no rule as to the weight of evidence necessary to meet it.
It is sometimes said that the presumption will tip the scale when the evidence is balanced. But, in truth, nothing tips the scale but evidence, and a presumption, being a legal rule or a legal conclusion, is not evidence.
It is not probative matter, which may be a basis of inference and weighed and compared with other matter of a probative nature.”
See, also, 4 Wigmore on Evidence, $ 2491; 2 Best's Principles of Evidence (Am. Ed.), $$ 298, 299; note in 33 L. R. A. (N. S.) 1085; Thayer's Preliminary Treatise on Evidence (1898), Appendix B, p. 551. A discussion of this subject will also be found in Baker v. Delano, 191 Mich. 204, at p. 208.
But while this is true, it does not follow, in the case of the particular presumption here under consideration, that immediately upon the introduction of any evidence whatsoever tending to show negligence on the part of the deceased the presumption vanishes and that the burden then rests upon the plaintiff of establishing by affirmative evidence that decedent exercised due care in every respect. A distinction has been recognized between direct, positive and credible rebutting evidence and mere circumstantial evidence having but a slight or inconclusive tendency to rebut the presumption. When direct, positive and credible rebutting evidence is introduced, the presumption ceases to operate; but when circumstantial evidence of doubtful value is the only rebutting evidence offered, the question should be submitted to the jury, and if they decide that the circumstantial evidence should be disregarded, the presumption is still sufficient to establish plaintiff's case as to the exercise of proper care by the deceased. Moreover, it is only in cases where direct testimony of credible eyewitnesses as to the negligence of deceased is uncontradicted, that the court is warranted in directing a verdict for the defendant on the ground of decedent's contributory negligence. If the testimony is contradicted by other witnesses, or rendered improbable by the circumstances, or if the credibility of the witnesses is attacked, the question must be submitted to the jury, but in such case the jury must weigh merely the evidence, unaided by the presumption. If, however, the jury decide that the testimony tending to show negligence on the part of the deceased in the particular claimed has been overcome by other evidence and should be disregarded, the presumption will, of course, if necessary, still operate to establish plaintiff's case as to the care exercised by the deceased. The attempt to rebut the presumption having failed, it still remains in force so far as may be necessary to cover any particulars not touched on by the evidence. There is no reason why an unsuccessful attempt to show the negligence of deceased in some particular respect should place upon the plaintiff the burden of proving by affirmative evidence that the deceased used due care in all respects—a burden which did not rest upon him before the attempt was made.
A case well illustrating the effect of direct rebutting evidence is Mynning v. Railroad Co., 64 Mich. 93 (8 Am. St. Rep. 804), where it was said:
"The presumption of law is that the person killed at a crossing did stop, and look and listen, and will prevail in the absence of direct testimony on the subject. But where there is affirmative, direct, and creditable testimony that the person injured went upon the track without stopping to look and listen, the presumption is rebutted and displaced. (Citing cases.) Such is the testimony in this case, and there is none to the contrary. The showing of contributory negligence is much stronger than in Pzolla v. Railroad Co., 54 Mich. 273, and we held in that case that the plaintiff was not entitled to recover because of such contributory negligence, and we affirmed the ruling of the court below in taking the case from the jury."
And in the recent case of Baker v. Delano, supra, it was said:
“We are of the opinion that it is clear that it is the rule in this State that the presumption that a plaintiff is free from contributory negligence can be said to apply only in cases where there is an absence of any direct evidence to the contrary.”
And, again, after a review of the testimony in that case:
“We are of the opinion that this testimony makes it clear that there were eyewitnesses of the accident who were able to, and did, give direct testimony on the subject, and that consequently, under the authorities above cited, the presumption relied upon by the plaintiff was removed. This testimony also makes the conclusion irresistible that if the deceased had stopped, looked, and listened, it would have been a physical impossibility for him not to have been aware of the approach of the engine, no matter whether the bell was being rung or the lights were burning. We see no escape from the conclusion that the circuit judge was clearly right in holding that the deceased was guilty of contributory negligence.”
See, also, Haas v. Railroad Co., 47 Mich. 401; Rhoades v. Railway Co., 58 Mich. 263; Matta v. Railway Co., 69 Mich. 109; Underhill v. Railway Co., 81 Mich. 43; Apsey v. Railroad Co., 83 Mich. 432; Stewart v. Railroad Co., 119 Mich. 91; Graf v. Railway
Co., 94 Mich. 579; Schwartz v. Railroad Co., 153 Mich. 40 (17 L. R. A. [N. S.] 1253); Folkmire v. Railways Co., 157 Mich. 159 (17 Ann Cas. 979); Gates v. Beebe, 170 Mich. 107.
The rule applicable in a case where there is no direct, positive testimony as to the negligence of the deceased person for whose death the action is brought, but where there is some circumstantial evidence tending to show negligence on his part, is thus stated by Mr. Justice COOLEY in Teipel v. Hilsendegen, 44 Mich. 461:
"In this case there were no eyewitnesses, and the injury resulted in death. The plaintiff sues as administrator of the person killed. There was some evidence of negligence on the part of the defendant, and there was some ground for an opinion that the intestate was negligent also. But the plaintiff put in such proofs of the attendant facts as were attainable under the circumstances, and from these it was by no means clear that the intestate was in fault at all. There was room for the conclusion that he was not. We think the case ought to have gone to the jury."
A recent case of this kind was Cinadar v. Railway Co., 193 Mich. 38. The plaintiff was killed by the accident, and there were no eyewitnesses who saw him immediately before he drove upon the track, though a number saw him before he passed out of view behind a box car. He was familiar with the crossing and knew a train was due. Witnesses who were at the time a block farther away from the approaching train than the deceased, testified that they distinctly heard the noise of the train and its whistle, and the circumstances created quite a strong inference that if plaintiff had stopped the heavy coal wagon he was driving before passing into the danger zone, he must necessarily have heard the approaching train. Mr. Justice STONE, in his opinion, said: