Gorman, James M.

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NOTES AND COMMENTS 367or not a court of equity will strictly enforce the condition precedent whentime has been made of the essence of a bilateral contract. Though itseems that most of the other cases in Ohio have adopted a strict construc-tion, and required performance of conditions precedent, there is abundantauthority favoring the lenient construction adopted by the majority.It was, however, the view of the dissent that this was not a case ofa bilateral contract, but of an option, and for that reason the conditionprecedent of performance on time should be strictly enforced. Thisseems to be a perfectly justifiable view if we can consider that this wasan option, since equity will not give relief where there is a failure tocomply with the conditions of an option because there is no forfeiture,but the option holder is left in status quo. Lauderdale Power Co. v.Perry, 202 Ala. 394, 80 So. 476 (1918); Hughes v. Holliday, 149Ga. 147, 99 S.E. 301 (1919); I Ames, Cases on Equity Jurisdiction,p. 32on (1904). "The burden of proof in an action for specific per-formance of an option is on the plaintiff to show either a tender of thepurchase price or a justification for his failure to do so. But a mistakenbelief that title was encumbered will not excuse the plaintiff's failure totender the purchase price within time." Bingham v. Shoup, supra. Thegeneral view is, then, that in the case of an option time will be of theessence, and will be regarded as a condition precedent which will bestrictly enforced. There is, however, one line of authority which holdsthat a condition precedent will not be strictly enforced even in an option.F. B. Fountain Co. v. Stein, 97 Conn. 619, II8 At. 47, 27 A.L.R.976 (1922). If this view were followed, the decision of the majoritycould be upheld even if this be considered an option, though to go to thisextent would seem to be a glaring example of coddling a debtor.JOHN S. MITCHELLEVIDENCEPRESUMPTION OF CONTRIBUTORY NEGLIGENCE RAISED BYPLAINTIFF'S OWN EVIDENCEPlaintiff's evidence disclosed that his automobile was struck bydefendant's backing engine on an improved grade crossing. The cross-ing was well known to plaintiff, and the visibility was obscured by theearly morning fog. The trial court charged on negligence, and requestedcounsel for any additionally desired instructions. None were offered, butdefendant's counsel made a general exception. The court of appealsreversed a judgment for the plaintiff on the sole ground that the trial368 LAW JOURNAL-JUNE, 1938court committed prejudicial error in failing to charge the jury upon theprinciple that if plaintiff's evidence raises a presumption of contributorynegligence, then before plaintiff could recover, this presumption mustbe dispelled by evidence of at least equal weight. The Supreme Courtreversed the Court of Appeals, and affirmed the trial court on theground that had a charge been requested on this phase, it would havebeen the duty of the court to have done so, but since it was not requested,the error, if any, was one of omission, and not commission, and notprejudicial. Valencic v. Akron & B.B.R. Co., 133 Ohio St. 287, 13N.E. (2d) 240 (1938).The Supreme Court by dictum in this case threw an interesting newlight on the confusion and indecision of the cases dealing with this pre-sumption of contributory negligence by declaring that, "it is not a pre-sumption of law but a presumption of fact, or, as is often called, aninference." It again raises the question: What is this "presumption";why and what is its effect?The doctrine first appeared in Ohio in Baltimore & Ohio R.R. Co.v. Whitacre, 35 Ohio St. 627 (I88o), where the court said, "If plain-tiff's testimony raises a presumption of contributory negligence, then itis his duty to remove that presumption, otherwise he would fail in hisaction." As a basis for this statement the court cited Hays v. Gallager,72 Pa. at I41 (1872), and Robison & Weaver v. Gary, 28 Ohio St.241 (x876). The former case stated, "If plaintiff's own evidence dis-closes facts which prove negligence, it is not necessary that the defendantshould prove it." The latter case declared that, in such a case, the pre-sumption of due care on plaintiff's part is so far removed that he cannotbe relieved from disproving his own negligence, and that the questionshould be left, upon the whole evidence, to the determination of thejury, with the instruction that the plaintiff can not recover if his ownnegligence contributed to the injury. But neither case spoke of anypresumption which plaintiff must remove.Formerly the presumption of contributory negligence was declaredto shift the burden of proof to the plaintiff. P. & L.E. Ry. Co. v. Blair,ii Ohio C.C. 579. But later it was decided that if plaintiff's owntestimony raises a presumption of contributory negligence upon his part,the burden of proof does not shift, and he is only required to furnishsuch proof as is sufficient merely to equal or counterbalance the evidencetending to show contributory negligence on his part. Tresise v. Ash-down, 118 Ohio St. 307, 316, 16o N.E. 898, 58 A.L.R. 1476(1928).It has been said that there is no burden upon plaintiff to remove aNOTES AND COMMENTS 369mere suggestion of contributory negligence created by his own evidence;there must be an inference from facts. Lopa v. Smith, 37 Ohio App.346, 174 N.E. 258. Aff'd in 123 Ohio St. 213, 174 N.E. 735. Thecourts constantly speak of presumption or inference in the alternative andthe last cited case declares that the two terms are used interchangeably.Each party is entitled to the benefit of evidence in his favor no matterwhich party offers it and thus plaintiff is entitled to the benefit of anyevidence that may be produced by the defense tending to dispel theinference or presumption of negligence that has arisen from plaintiff'sown evidence. Smith v. Lopa, supra. If plaintiff's evidence is suscept-ible of no other reasonable inference than that of negligence on his partdirectly contributing to the injury, and plaintiff is not aided by otherevidence in the case, it becomes the duty of the court to direct a verdictfor the defendant. Buell, Adm'x v. N.Y.C.R. Co. 114 Ohio St. 40,i5o N.E. 422 (1926); 29 Ohio Jur., "Negligence," 655; C.C.C. &St. L. Ry. Co. v. Lee, i ii Ohio St. 391, 145 N.E. 843 (1925).The rule has led our trial courts to charge the jury in this manner:"If you find that the evidence offered by the plaintiff raises a reasonablepresumption of negligence on his part * * * , the burden is cast uponplaintiff to rebut or counterbalance the presumption, or he can notrecover." Now, if plaintiff's evidence has made a prima facie case ofcontributory negligence as a matter of law, defendant's motion for adirected verdict will be granted. If not so strong, then the case goesto the jury, and the burden is upon plaintiff to rebut the presumption.But it is not, in truth, a presumption that the jury is requested to find,but an inference. What the jury is really told is that if it finds anyevidence (more than a mere suspicion) of contributory negligence inplaintiff's own evidence, then from the entire evidence of plaintiff anddefendant it must find enough evidence to counterbalance this evidenceor "presumption" before it can go ahead and determine the issue ofcontributory negligence in the whole case with the burden of proof onthe defendant. Thus, upon the appearance of evidence of contributorynegligence in plaintiff's case, the burden of going forward and dispellingthis evidence is placed upon him. It is exceedingly difficult for a juryto apply such an instruction.The most common statement used by the courts supposedly follow-ing the same view as that of Ohio is: "Where plaintiff's own case pre-sents evidence which, unexplained, makes out prima facie contributorynegligence on his part, he must produce further evidence exculpatinghim, or he cannot recover." Grant v. Chicago, Etc. Ry. Co., 78 Mont.97, 252 Pac. 382 (1927). It is to be noted, however, that this rule370 LAW JOURNAL - JUNE, 1938seems to be applied only in cases terminating in a directed verdict, non-suit, or sustained demurrer.There seems to be no logical reason to require the creation of thepresumption or the shifting of the burden of going forward to theplaintiff. There is a presumption against the negligence of either party.Contributory negligence is an affirmative defense, and the burden ofproving it by a preponderance of the evidence is upon the defendant.Knisely v. Community Traction Go., 125 Ohio St. 131, 136, I8o N.E.654; Maddex v. Columbus, 114 Ohio St. 178, I86, 151 N.E. 613.Plaintiff does not have to plead nor prove freedom from contributorynegligence. If plaintiff's evidence established a prima facie case of con-tributory negligence, then he has made a defense to his own case-hehas failed to make out his prima facie case, and the court will direct averdict for defendant. If there is no contributory negligence as a matterof law, then the case should go to the jury with the burden of provingcontributory negligence entirely on defendant, the defendant having anybenefit that he may secure from either his own or plaintiff's evidence.This seems to have been the doctrine of the cases which an early Ohiocourt interpreted as creating a presumption against the plaintiff.This view is in accord with the holdings of a majority of courts."Where the plaintiff's evidence makes a prima facie case of negligenceproximately causing the injury and merely raises a question of contribu-tory negligence to be solved by the jury, the burden of proving suchdefense is on the defendant." Fort Worth Gas Co. v. Cooper, 241S.W. 282 (1922); Houston B. & T. Ry. Co. v. Davis, 19 S.W. (2d)77 (1929). The burden of establishing contributory negligence is onthe defendant, though proof of such negligence may arise out of theplaintiff's testimony in the first instance. Philadelphia B. & W. R. Co.v. Buchanan, 2 Boyce 202 (Del), 78 Atl. 776 (1911). The fact thatthe burden is on defendant to establish contributory negligence does notpreclude defendant from taking advantage of plaintiff's own evidenceshowing him guilty of contributory negligence. Houdashelt v. StateHighway, 137 Kan. 485, 21 Pac. (2d) 343 (933); Washington,4. & Mt. V. Ry. v. Vaughn, III Va. 785, 69 S.E. 1035 (191).The burden does not shift, but defendant must go ahead and provecontributory negligence with the aid of plaintiff's adduced evidence.Rapp v. Sarpy County, 71 Neb. 383, 98 N.W. 1042 (1904). Unlessevidence bf plaintiff establishes contributory negligence as a matter oflaw, the burden is on defendant to show that fact. The jury must beinstructed in determining such issue that they may look to all the factsin the case. Gulf, C. & S. F. Ry. Co. v. Melville, 87 S.W. 863NOTES AND COMMENTS 371(1905); Harrington v. Eureka Hill Min. Co., 17 Utah 300, 53 Pac.737 (i898)- "The fact that plaintiff, in making out his own case,introduces evidence tending to prove his own contributory negligencedoes not change the nature of the issue, * * * and the fact that thedefendant may use the evidence introduced by the plaintiff does notshift the burden of proof from the defendant to the plaintiff." 2oR.C.L., Neg. 164, p. 200. When different inferences may be drawnfrom the evidence, the burdeii of establishing contributory negligenceis upon the defendant, regardless of whether the evidence with regardthereto comes from plaintiff's or defendant's witnesses. The burden ison defendant, although contributory negligence may have been infer-able from testimony produced by plaintiff. Conway v. S. L. & 0. Ry.Co., 47 Utah 510, I55 Pac. 339, L.R.A. i 9 i6D, 1io9 (1916);Dahlquist v. Denver & R.G.R. Co-, 52 Utah 438, 174 Pac. 833(1918).Ohio cases have been gradually weakening the "presumption" rule,and the court of appeals in Tudor Boiler Mfg. Co. v. Teeken, 33 OhioApp. 512, 519, 169 N.E. 704, (motion to certify overruled Mar. 21,1929) strove to adopt the better and sounder rule. Therein, it criticizedthe necessarily indefinite application of the rule laid down in B. & 0. v.Vhitacre, supra, and the consequent vacillation of the burden of provingcontributory negligence. Refusing to follow it, the court said: "As weview the law, supported by the great weight of authority, (if there be noprima facie case for a directed verdict), the rule is that the burden ofproof is on defendant to show contributory negligence, but that thedefendant is entitled to all of the evidence in the case, that presented bythe plaintiff as well as that presented by the defendant."The rule as at present accepted by the Ohio courts is not only with-out logical support, but it is also to be regretted, in that it uselessly con-fuses the jury by the complexity of its application, and harasses thealready burdened trial court by increasing the danger of reversible errorin its instructions. It is hoped that a simpler and sounder doctrine willsoon be enunciated by the Ohio Supreme Court.JAmEs M. GORMAN

Presumption of Contributory Negligence Raised by Plaintiff's Own Evidence

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Presumption of Contributory Negligence Raised by Plaintiff's Own Evidence

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