Kroehler v. Arntz

{dissenting). The negligence of the defendant is admitted. The only question presented is, Was deceased guilty of negligence as a matter of law? There were only two witnesses to the events immediately prior to the accident — the defendant and his wife. The wife did not testify. The deceased died immediately upon being struck by defendant’s automobile. As to these events the testimony of defendant should be accepted as favorably to the plaintiff as it will fairly stand. The presumption is that he was in the exercise of due care, and proof of contributory negligence devolved upon defendant.…