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Rogers v. Interstate Transit Co.

District Court of Appeals of California, Third District
Feb 21, 1930
285 P. 731 (Cal. Ct. App. 1930)

Opinion

Hearing Granted by Supreme Court March 20, 1930

Appeal from Superior Court, Shasta County; Walter E. Herzinger, Judge.

On petition for rehearing.

Petition denied.

For former opinion, see 284 P. 499.

COUNSEL

Jesse W. Carter, of Redding, and Annette Abbott Adams, of San Francisco (George Allan Smith, of Monterey, of counsel), for appellant.

Carr & Kennedy, of Redding, for respondent.

Devlin & Devlin & Diepenbrock, of Sacramento, amicus curiae.


OPINION

PER CURIAM.

On petition for a rehearing elaborate briefs have been filed in support of appellant’s assertion that it was error to instruct the jury it could consider, with other evidence adduced on that subject, the presumption declared by section 1963 of the Code of Civil Procedure "that a person takes ordinary care of his own concerns," in determining whether the plaintiff was guilty of contributory negligence.

Under the circumstances of this case, we are satisfied the opinion of this court correctly states the law. The burden was on the defendant with respect to this issue as to contributory negligence. The plaintiff was fortified with the presumption that he exercised ordinary care for his own safety. The mere occurrence of a collision between two automobiles does not destroy the presumption that both drivers used ordinary care. The burden is upon him who charges negligence to prove it by a preponderance of the evidence. In the present case the plaintiff offered no evidence to refute this presumption. He claimed the benefit of this presumption. The presumption is declared by statute to be evidence. In the absence of any testimony to the contrary, it is controlling. Since it is some evidence of the fact as declared by statute, it becomes necessary for the jury to decide whether the opposing testimony is substantial and sufficient in character and weight to dispel the effect of the presumption. It has been repeatedly held that these rebuttable presumptions which are created by statute "are of themselves evidence *** and will support a finding made in accordance with them, even though there be evidence to the contrary." People v. Siemsen, 153 Cal. 387, 390, 95 P. 863, 865; People v. Ellis (Cal.Sup.) 274 P. 353; Simonton v. Los Angeles T. & S. Bank (Cal.Sup.) 270 P. 672, 675; Estate of Wiechers, 199 Cal. 523, 527, 250 P. 397.

In the case of Smellie v. Southern P. Co. (Cal.Sup.) 276 P. 338, 341, the court did say this presumption "that a person takes ordinary care of his own concerns" is weak and unsatisfactory evidence which will not stand against facts to the contrary; that upon proof of facts to the contrary the presumption will be deemed to have been overcome or dispelled. This case is still pending in the Supreme Court. Assuming, however, this language will be finally approved, it must be construed in the light of the facts of that case. In that case the plaintiff, who relied upon this presumption, produced evidence herself which was deemed to refute the presumption. Her own witness, Ireland, testified to facts which tend to dispute the presumption. Under such circumstances it has been held without conflict of California authorities that the presumption is dispelled. The Smellie Case may therefore be reconciled with the leading authority of Mar Shee v. Maryland Assurance Corp., 190 Cal. 1, 9, 210 P. 269, 273, in which the cases upon this subject are collected and analyzed and reconciled in the following language: "From the foregoing we deduce that a fact is proved as against a party when it is established by the uncontradicted testimony of the party himself [who relies upon the presumption] or of his witnesses, under circumstances which afford no indication that the testimony is the product of mistake or inadvertence; and that, when the fact so proved is wholly irreconcilable with the presumption sought to be invoked, the latter is dispelled and disappears from the case."

It may be reasonably said that, regardless of which party adduces the evidence, it is still the province of the jury to determine whether the proof has sufficient weight or substance to dispel the presumption. In determining whether substantial evidence upon this subject has in fact been adduced, it is proper to instruct the jury it may consider the presumption which is involved in the controversy. Otherwise the court will be usurping the function of the jury by passing on the weight of evidence.

The appellant relies on the case of Western & A. R.R. Co. v. Henderson, 279 U.S. 639, 49 S.Ct. 445, 73 L.Ed. 884, wherein a statute of Georgia (Civ.Code Ga.1910, § 2780) was held to be unconstitutional which imposed a liability upon the railroad company for damages, resulting from injuries sustained from the use of its equipment, "unless the company shall make it appear that their agents have exercised all ordinary and reasonable care and diligence, the presumption in all cases being against the company."

This Georgia statute was class legislation. It attempted to shift the burden contrary to the uniform rule of law and require a railroad company to affirmatively prove its freedom from negligence. It purported to create a presumption which was based upon neither reason nor justice and which was not uniform in its operation. It is little wonder the federal court said it was unreasonable, arbitrary and violative of the due process clause of the Fourteenth Amendment of the Constitution. The statute in that case is in no wise similar in effect to the one here involved. That case is not authority for the determination of this case.

The other points made by the appellant in the present case are fully covered by the opinion.

The petition for a rehearing is denied.


Summaries of

Rogers v. Interstate Transit Co.

District Court of Appeals of California, Third District
Feb 21, 1930
285 P. 731 (Cal. Ct. App. 1930)
Case details for

Rogers v. Interstate Transit Co.

Case Details

Full title:ROGERS v. INTERSTATE TRANSIT CO. [*]

Court:District Court of Appeals of California, Third District

Date published: Feb 21, 1930

Citations

285 P. 731 (Cal. Ct. App. 1930)

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