dissenting:
The failure of the district court to instruct the jury on the presumption of due care and the absence of an intelligible instruction upon the defendant’s burden of proving the decedent’s negligence require reversal and a new trial. The majority opinion assumes that Idaho gives a trial judge broad discretion to decide whether to instruct a jury upon the presumption of due care and that Idaho does not disturb that exercise of discretion if any evidence contradicting the presumption has been presented. The majority’s reasoning is plausible, but it is not the law of Idaho.
Neither the decision that the presumption has arisen, nor the decision that the presumption, once it has arisen, has been dispelled is a matter of discretion.1 Idaho cases on the propriety of invoking the presumption are not a model of clarity. Indeed they indicate a confusion on the part of the Idaho courts as well as the majority opinion between (1) situations in which no presumption of due care arises; and (2) those in which the presumption has already arisen and the question is whether the presumption has been dispelled. Because these two situations rely on different theoretical underpinnings, their separation is crucial to the analysis of the present case.
The purpose of the presumption of due care is to ease the burden of proving non-negligence when the party who seeks to prove nonnegligence cannot obtain proof of that fact because he is dead, is too young to testify, is unable to remember due to injury, has no other witnesses to the details of the accident, or has no convincing evidence of those details from other sources. (See State of Maryland v. Baltimore Transit Co. (4th Cir. 1964) 329 F.2d 738, 741 (“. . . The presumption . . . may be invoked only where the injured person is unavailable because of the injuries suffered or because of death. Such incapacity is the just reason for the presumptionf.]”); Murphy v. Atchison, Topeka & Santa Fe R.R. (1958) 162 Cal.App.2d 818, 824, 329 P.2d 75, 78 (“. . . The only possible justification for the employment of the presumption against the party carrying the burden of proof is to provide a balancing factor to compensate for a handicap resulting from the destruction of a vital source of evidence.”).) In this way, the presumption acts as a substitute for live testimony in the absence of other evidence of the events leading up to an accident.
When these circumstances do not exist, the reason for creating the presumption disappears, and the presumption does not arise. (See Dewey v. Keller (1964) 86 Idaho 506, 388 P.2d 988, 995 (The presumption does not arise when “the details of an accident are available through eye witnesses or other external evidence.”). Accord: Dopp v. Union Pac. R.R. Co. (1974) 95 Idaho 702, 518 P.2d 964; Mundy v. Johnson (1962) 84 Idaho 438, 373 P.2d 755.) Accordingly, instructions on such a nonexistent presumption would be unnecessary, and indeed, improper as a matter of law.2
*481The presumption in the case at bar was properly invoked by appellants. Ronald Johnston, whose negligence was in issue, was dead. No witnesses were available to describe what Johnston did immediately or shortly before the accident. True, Marlar, was a witness to the events subsequent to the collision of the two vehicles. But he did not, and could not, testify as to the events prior to the accident, let alone to the decedent’s conduct at that time. The existence of such a witness, thus, does not remove the need for an instruction on the presumption of due care. (See Schultz & Lindsay Construction Co. v. Erickson (8th Cir. 1965) 352 F.2d 425, 435 (“. . . However, the mere fact that an eyewitness was present is not enough to annul the presumption. The eyewitness must have had sufficient time to observe whether the injured or deceased person was exercising due care in the crucial seconds before, and during, the accident.”); Jorstad v. City of Lewiston (1969) 93 Idaho 122, 456 P.2d 766, 770 (“In this case there is no evidence of the decedent’s conduct immediately prior to his death or striking the divider. The evidence . of what the decedent or his car did after the collision is not sufficient to indicate what his conduct was immediately prior to striking the divider.”).) Nor was the circumstantial evidence an adequate substitute for the testimony of live witnesses. The most that can be said for it is that an inference might be drawn that the decedent was inattentive. Certainly, unlike Mundy, a great deal was left to speculation about how the accident happened — as the majority’s own conjectures reveal.
A conclusion that the presumption of due care properly arose in this case does not answer the separate question whether the presumption was dispelled. In deciding whether a presumption has been dispelled, we must start with the adoption by Idaho of the much-criticized view that a rebut-table presumption is a species of independent evidence.3 Criticism of the presumption of evidence view was primarily based upon its illogic. The majority opinion fights with the premise.4 Once the premise has been adopted, the results of the adoption follow with rigorous logic. Among the consequences is that a jury is supposed to weigh the evidence contradicting the presumption against the presumption. A trial judge cannot take this “evidence” from the jury unless reasonable minds could not differ in rejecting the presumption and accepting the contradicting affirmative evidence. “ ‘[TJhis court had definitely committed itself to the doctrine that where there is a conflict between the presumption and contrary evidence, from which reasonable minds might draw different conclusions, it is proper to instruct the jury as to the presumption.’ ” (Department of Finance of State v. Union Pac. R.R. Co. (1940) 61 Idaho 484, 104 P.2d 1110, 1112. See also the cases collected and analyzed in Haman v. Prudential Insurance Co. of America, supra, 415 P.2d at 310-312.) A trial judge cannot take the presumption of due care from the jury merely because some evidence conflicting with the presumption exists; a contrary assumption is antithetical to the presumption as evidence theory because it would authorize the trial *482judge to resolve conflicts in the evidence, a function committed solely to the jury.
Bradbury v. Voge and Ineas v. Union Pac. R. R. Co.5 relied upon by the majority, are completely consistent with the presumption as evidence view. Both of these cases involve a conflict between a legally created presumption of due care on behalf of a decedent as against a presumption of negligence arising from the violation of a statute. In this situation a legally created presumption of negligence collides with a legally created presumption of nonnegli-gence. The presumption of negligence cancels out the presumption of nonnegligence.6 Neither Bradbury nor Ineas solves the problem in our case because our case does not involve a collision between two contradictory presumptions, both of them created as a matter of law.
In absence of an overriding statutory presumption, the presumption of due care cannot be dispelled by “some” evidence. It can only be overridden when the controverting evidence is so strong that reasonable minds could not differ in rejecting the presumption and accepting the contradicting evidence. Although the majority opinion is correct in observing that circumstantial evidence can dispel the presumption, the observation is irrelevant. The strength, and not the source, of the evidence contradicting the presumption is what is at issue in deciding whether a presumption has been dispelled. Circumstantial evidence can be more powerful than direct testimony. But the central question remains whether all of the evidence, whatever the source, so unerringly points to the decedent’s negligence, that contrary “evidence” (the presumption of due care) must be disbelieved as a matter of law. The evidence to which the majority has directed our attention simply does not have that overwhelming force, and the issue of the presumption of due care could therefore not properly be taken from the jury.7
Failure to instruct the jury on the presumption of due care requires reversal because its effect was to remove highly relevant “evidence” from the jury.8 Independently, however, the absence of any intelligible instruction about the defendants’ burden of proving that the decedent was con-tributorily negligent also requires reversal. The court did instruct the jury that the “burden is on the party, who asserts the affirmative of an issue” to prove it. To a lawyer who understands this esoteric shorthand, the instruction is meaningful. But it is entirely fanciful to believe that the instruction meant anything to the jury. And, *483the other instructions on the burden of proof were no more enlightening.9
I would reverse and remand for a new trial.
. The process involved in the decision whether the presumption of due care arises resembles the trial judge’s duties when faced with questions of fact preliminary to the admissibility of evidence. (See Fed.R.Evid. 104; and 1 Wein-stein and Berger, Evidence, flH 104[01], 104[02] (1975).)
. The majority opinion quotes language in Lal-latin v. Terry (1959) 81 Idaho 238, 340 P.2d 112, 118, to conclude that the decision to invoke the presumption rests in the discretion of the trial judge. While the language in that case could have been more artfully drafted, it does not support the majority opinion’s conclusion. It is obvious that it would have been improper in that case to instruct the jury on the presumption of due care where an eyewitness to decedent’s conduct prior to the accident was available. (See also Drury v. Palmer (1962) 84 Idaho 558, 375 P.2d 125; Graham v. Milsap (1955) 77 *481Idaho 179, 290 P.2d 744; Weinstock and Chase, The “Presumption of Due Care” in California (1953) 4 Hastings L.J. 124, 125.)
. E. g., Haman v. Prudential Insurance Co. of America (1966) 91 Idaho 19, 415 P.2d 305; Adams v. Bunker Hill & Sullivan Mining Co. (1906) 12 Idaho 637, 89 P. 624.
. California adhered to the presumption as evidence theory for many years, commencing with Smellie v. Southern Pac. Co. (1931) 212 Cal. 540, 299 P. 529, until it was overturned by the adoption in California of the Evidence Code. Idaho has followed the development of the Smellie rule, but, unlike California, it has not overturned it either by overruling decisions or by statute. The rule was the subject of a well-known scholarly debate to which Professors Thayer, Wigmore, and Morgan were all parties. See, e. g., 9 Wigmore on Evidence (3d ed.) Section 2491; Chadburn, J. H., The “Uniform Rules” and the California Law of Evidence (1954) 2 U.C.L.A.L.Rev. 1, 21.
. Bradbury v. Voge (1969) 93 Idaho 360, 461 P.2d 255; Ineas v. Union Pac. R.R. Co. (1952) 72 Idaho 390, 241 P.2d 1178.
. As the dissenting opinion points out in the Bradbury case, the majority incorrectly went further in holding that the presumption of negligence not only overcame the presumption of due care, but it also compelled judgment in favor of the defendant on the theory of contributory negligence. The conclusion by the majority is incorrect on the ultimate question because even if the presumption of due care is dispelled as a matter of law by reason of the existence of the presumption of negligence, summary judgment or a directed verdict is improper because “there remains the issue whether such negligence was the proximate cause of the accident, because contributory negligence will not bar a plaintiffs recovery unless it proximately caused his injury.” (461 P.2d at 260.)
. Idaho law compels a trial judge to instruct the jury on the presumption of due care once the presumption has been properly invoked and evidence conclusively contradicting the presumption is not produced. The decision to invoke “the practical function” of the presumption is entirely separate from the decision to take the presumption from the jury by reason of the overwhelming weight of the opposing evidence. If there is any obscuring here, it is in the majority opinion’s failure to make the appropriate separation between the conditions which cause the presumption to be invoked and the circumstances under which it may be dispelled.
. This is especially true since Idaho’s comparative negligence statute requires the jury to quantify fault and does not allow recovery where the jury determines that plaintiffs fault is greater than or equal to 50%. (See Idaho Code, § 6-801 (Supp.1975).)
. The absence of a coherent instruction on defendants’ burden of proving contributory negligence was all the more prejudicial here where no instruction on the presumption of due care was given. As the majority opinion concedes, Idaho has treated the two evidentiary devices as interchangeable substitutes for live testimony. (See Koch v. Elkins (1950) 71 Idaho 50, 225 P.2d 457, 461 (“. . . When the evidence . . . leaves the issue of negligence or contributory negligence in doubt or in equipoise, the law requires a decision against the party having the burden of proof, just as under like circumstances it requires a decision against him when he is confronted with a presumption of due care in favor of his opponent.”); Van v. Union Pac. R.R. Co. (1961) 83 Idaho 539, 366 P.2d 837, 844 (“Serious doubt arises as to the propriety of giving an instruction on the presumption of due care in an action such as this where contributory negligence has been plead and relied upon as an affirmative defense.”).)