EVIDENCE-PRESUMPTIONS-PLAINTIFF'S RES IPSA LOQUITUR AGAINST DEFENDANTS PRESUMPTION OF DUE CARE

Plaintiff sued for injuries resulting when an automobile which defendant was driving and in which plaintiff was sleeping left the highway. There was evidence that defendant suffered retrograde amnesia and could not recall the circumstances of the accident. The court, instructing on res ipsa loquitur for plaintiff, told the jury that it might infer negligence from the fact that the automobile inexplicably left the highway. The court also instructed that, if the jury believed that defendant suffered a loss of memory, defendant was presumed to have exercised due care.

Verdict for defendant. Plaintiff contended that instruction on the presumption of due care was improper in a res ipsa loquitur case because of the difficulty that the jury would have in weighing an inference of negligence against a presumption of due care. On appeal, held, affirmed. The defendant is not to be deprived of the presumption of due care ''because of the difficulty jurors would encounter in determining the relative weight of an inference that a thing is black and a presumption that it is white." Scott v. Burke, (Cal.

App. 1952) 239 P.(2d) 14 at 16.