Debuhr v. Taylor

(dissenting) — I am unable to agree with the majority opinion herein and respectfully dissent. The only error assigned is the giving of instruction 5, quoted in the majority opinion. I do not think that said instruction was erroneous. Accordingly, I would affirm.

As I read the majority opinion, it holds that instruction 5 is erroneous for three reasons, to wit: (1) a defendant may not invoke the no-eyewitness rule; (2) instruction 5 gives defendant the benefit of affirmative proof rather than a presumption ; (3) the testimony of plaintiff and the physical facts render the no-eyewitness rule…