Coonley v. Lowden

(dissenting) — I dissent from Division I of the majority opinion. The record, as I read it, utterly fails to show any direct or circumstantial evidence of freedom from contributory negligence sufficient to carry that issue to the jury. The burden was on plaintiff to make such affirmative showing. He was aided by no presumption. Our province is not to determine-whether he was in fact negligent, but to say whether there is evidence to support a jury finding that he was noi negligent. (I will use the term plaintiff to refer to the driver of the ear whenever the context so indicates.)

It is well…