Smith v. Bohlen

Judge Phillips

dissenting.

In the context of this unexplained rear-end collision case, the court having seen fit to twice instruct the jury the unnecessary and obfuscatory, though approved, bromide that “negligence is not to be presumed from the mere fact of either personal injury or property damage, or both,” the court erred in my judgment by not also instructing them that evidence of the rear-end collision was some evidence of defendant’s negligence. As it was the jury was told that they were not to take for granted that defendant was negligent because he ran into the rear of plaintiffs car, and that plaintiff had to prove that defendant was negligent in one of the three ways alleged, but were not told that they could infer from the circumstances of the collision that defendant was negligent in each of the three ways alleged. Thus, the jury may not have considered virtually the only evidence presented as to defendant’s negligence. The prejudicial effect of this failure to clarify the situation seems obvious and that effect was probably accentuated by the improper attempts to prejudice the case referred to in the opinion.