concurring.
I concur in the result reached in the majority opinion. However, I believe that opinion to be in error in holding the certified statement of the deputy director of highway administration that his search of the records of the department of highways failed to reveal any resolution regulating speed on Highway 340 was conclusive evidence of the non-existence of such a regulation.
The statute relied upon, IND.CODE § 9-4-1-125(e), provides that proof of the existence of speed zone signs "shall be prima facie evidence of the adoption and application of such restriction by the department of highways and the validity *522thereof." The statute then provides that "a certified copy of the order establishing the restriction in question ... shall be ... conclusive proof of such designation or determination by the director of the department of highways." That statute does not provide that a certification by the keeper of the records that a search of such record reveals no such resolution is conclusive proof of no such resolution exists. The majority's conclusion that no other conclusion is possible is not plausible.
Because I1.C. 9-4-1-125(e) fails to deal with the matter of the failure to find a record of such a resolution, resort to other statutes and rules must be had. IND. CODE § 34-3-17-1 provides:
"[A] written statement signed by an officer or person having the custody of official records or books, or by his deputy, that after diligent search no record or entry of a specified tenor is found to exist in the records of his office ... shall be admissible in evidence in any ... civil proceeding ... as prima facie proof of the lack of record or entry as specified".
Indiana Rules of Procedure, Trial Rule 44(B) provides that "a written statement that after diligent search no record or entry of a specified tenor is found to exist ... is admissible evidence that the records contain no such record or entry."
It was the plaintiff's burden to prove the existence of the speed limit. By producing evidence of the existence of the speed limit signs, a prima facie case of the existence and legality of the speed limit was made. The burden of going forward with the evidence was thereby shifted to the defendant to meet plaintiff's prima facie case. This, the defendant did by making a prima facie case that no proper resolution existed, thereby shifting the burden back to plaintiff to produce evidence of the legality of the speed limit declared by the signs. This prima facie showing of no resolution was not met by plaintiff.
When a party with the burden of proof makes a prima facie case, the burden of going forward with the evidence to explain away the case shifts to his adversary. 29 Am.Jur.2d Evidence § 126 (1967). But, to overcome a prima facie case, the opponent need only meet it, he does not have to defeat it by a preponderance on the greater weight of the evidence. 29 Am.Jur.2d Evidence § 1165. "It is sufficient if the defendant's evidence equalizes the weight of the plaintiff's evidence, or in other words, put the case in equipoise." Id. If the case is left in equipoise, the party with the burden of proof (the plaintiff here) must fail. Id. The defendant is never required to negate the plaintiff's prima facie case by a preponderance of the evidence, and the party having the burden of proof cannot prevail if the evidence is evenly balanced. 13 LLE. Evidence § 324 (1959).
The situation here is one of equipoise, that is evenly balanced evidence on the issue of the existence of a legal speed limit. Plaintiff's prima facie case derived from the existence of the speed limit signs was met equally by defendant's prima facie proof of the lack of a proper resolution. Thus, there was no question for the jury to resolve. Plaintiff failed to prove a 40 mile per hour speed limit, and the court's instruction was proper.
Therefore, I concur.