(dissenting) :
I applaud the move by the Virginia Supreme Court of Appeals to eliminate the practice in Virginia of instructing juries in negligence cases as to the burden of persuasion in terms of a presumption of due care, but I cannot join my brothers in concluding that the District Court’s charge, considered as a whole, was prejudicial in any way to the plaintiff.
In the hands of the court, presumptions are useful things in fixing and shifting the burden of going forward with evidence. Some presumptions serve other offices. Such presumptions as that of death after seven years of unexplained absence mandate the drawing of an ultimate inference from the circumstantial evidence in the absence of direct testimonial contradiction of the ultimate fact in issue. I have long shared Professor Wigmore’s opinion, however, that rarely, if ever, should a jury be instructed in terms of presumptions or their effects. A problem sometimes arises in explaining to a jury that it may permissively draw reasonable inferences from circumstantial proof despite direct testimonial contradiction of the ultimate fact, but use of the word “presumption” in a charge is so likely to carry with it an implication of artificial evidentiary value that it ought to be avoided, as I have had occasion to say before.1
Still, an appellate rule of reversal whenever the trial judge permitted the word “presumption” to fall upon the ear of the jury would be exceedingly arbitrary and a distortion of the appellate function. The issue on appeal cannot turn upon the use of the distasteful word —distasteful to the appellate court, but the question on appeal must be whether or not, considering the entire charge as a whole, there was reasonable probability that the jury was misled to the appellant’s prejudice. I can find in this record no basis for a conclusion that it was.
If the only relevant portion of the District Court’s charge in this case was the two-sentence excerpt quoted in the majority opinion, I would be inclined to join my brothers in a judgment of reversal. I would do so largely out of deference to the Virginia Supreme Court of Appeals2 and its decision in Cook v. Basnight, Va., 151 S.E.2d 408 (decided *450December 5, 1966), which dealt with substantially identical language in an instruction in a state court and not because of any firm conviction on my part that sucp. language, standing alone, is really prejudicial when the jury is informed that the presumption applies only until a fair preponderance of evidence to the contrary is introduced.3 However inappropriate I may think it to instruct a jury as to the burden of persuasion in terms of presumptions, it appears to have been a widespread practice in Virginia in both state and federal courts. We have placed our unequivocal imprimatur upon it, Willis v. Pennsylvania Railroad Co., 4 Cir., 269 F.2d 549, and there is nothing to suggest that plaintiffs in Virginia have fared poorly as a result of the widespread use of that method of informing the jury of the burden of persuasion.
Unlike the instruction in Cook v. Basnight, however the jury here was told much more.
Immediately following the two sentences quoted by my brothers, the Court told the jury of the plaintiff’s burden of persuasion in conventional terms of a fair preponderance of the evidence. He defined the terms to the jury, using the effective, if hackneyed, illustration of a scale which had to be tipped but slightly in the plaintiff's favor for him to carry his burden of persuasion.
Still that was not all.
After instructing the jury generally about negligence and proximate causation, the Court carefully enumerated the particular duties imposed upon the defendant in this case. The Court then returned to the subject of the burden of persuasion by instructing the jury as follows:
“If you believe by a fair preponderance of the evidence that the defendant Martin failed in the performance of any of the foregoing duties that I have just enumerated, then he was negligent and if you further believe from such evidence that any such negligence was a proximate cause of the collision, then you should find your verdict in favor of the plaintiff Sanderlin.”
Considered as a whole, the charge was complete, thorough, fair and unexceptional. I cannot believe that the early reference to a presumption of due care on the part of the defendant could have left with the jury an impression that the plaintiff bore a greater burden of persuasion than that which the Judge subsequently and repeatedly defined precisely and explicitly. This is particularly so when the initial reference to a presumption of due care was said to survive only until a preponderance of evidence to the contrary was introduced. The final reference to the burden of persuasion could leave no room for doubt in the jury’s mind, for it was told quite clearly that, if it believed from a preponderance of the evidence that the defendant had failed in the performance of any of the duties which the Court had enumerated, they should find that he was negligent and, if they further found that such negligence was a proximate cause of the collision, their verdict should be for the plaintiff. The Court said precisely what we all agree it should have said.
Finding the charge as, a whole, reasonable, fair and unprejudicial, I would affirm.
. State of Maryland for the use of Geils v. Baltimore Transit Co., 4 Cir., 329 F.2d 738, 745-747 (dissenting opinion).
. Virginia’s rules as to presumptions and the burden of persuasion govern us in this diversity case. 5 Moore’s, Federal Practice, 2d ed., ¶ 43.08.
. Cf. Yeary v. Holbrook, 171 Va. 266, 198 S.E. 441.