(concurring specially).
I concur in the holding that there should be a new trial. I am con*124vinced that the verdict in this case is the result of such confusion, in an attempt to apply Minn. St. 602.04, that a new trial is required. It seems to me that the enactment of § 602.04 in 1957 has led to a situation where it is now impossible for a trial court to instruct a jury rationally on the law of negligence where an action in which a third party sues the representative of the estate of a decedent is consolidated for trial with an action in which the trustee for the heirs of the same decedent occupies the position of plaintiff in the death-by-wrongful-act case. In this case, a trustee of Lambach’s heirs sues to recover for the benefit of his next of kin. It is conceded that the collision occurred when Lambach’s car crossed over the centerline into his wrong lane of traffic. Under these circumstances, a prima facie case of negligence was established which ordinarily would control as a matter of law unless some excuse or justification was established for his being there. But here the court is required to instruct that there is a presumption of due care on the part of the decedent, in the death-by-wrongful-act case, which must be rebutted by defendants. Thus, we have two opposite and inconsistent presumptions, both of which must be overcome by opposing parties.1
As we pointed out in TePoel v. Larson, 236 Minn. 482, 53 N. W. (2d) 468, 37 Minn. L. Rev. 629,2 the burden already rests on defendant to prove contributory negligence of Lambach by a fair preponderance of the evidence. If defendant fails to sustain the requisite burden of proof in that regard, the trustee suing in behalf of Lambach’s heirs prevails as a matter of law. But under § 602.04, even though the jury were convinced that Lambach was guilty of contributory negligence which proximately contributed to the accident, it could still find in his favor on the theory that the presumption of due care had not been rebutted. But that is not the worst of it. In the same trial, the representative of Lambach’s estate is sued as a defendant. Here he does not have the benefit of the presumption created by § 602.04. Proof of his negligence proximately contributing to the accident in the action *125in which he is defendant should lead to liability. But suppose that here the jury found him guilty of negligence proximately contributing to the accident but that in the same trial, in the action in which he occupies the position of plaintiff, they find that the presumption of due care has not been rebutted, what then should they do?
It is simply impossible for a court to instruct on or a jury to deal with the legal inconsistency created where in the same trial the representative of a decedent technically occupies positions as both plaintiff and defendant. The presumption of due care of a decedent rests on the theory that the love of life ordinarily will cause a person to exercise due care for his own safety. How is any jury of lay people going to understand that a decedent has such a love of life as to exercise due care when his trustee sues to recover for his death but that he did not have the same love of life when the representative of his estate is sued for his negligence? As long as § 602.04 remains as part of our statutory law, cases in which a trustee of a decedent sues to recover for his death should not be consolidated with cases in which the representative of the estate of the same decedent is .sued as a defendant. It is true that the outcome of such litigation will then sometimes depend on who gets to trial first, but even that is better than what we have now. I think that there should be a new trial in which the death-by-wrongful-act case is tried separately. Perhaps then the jury will be able to understand the law applicable to each case.
For a discussion of the effect of inconsistent presumptions, see Gausewitz, Presumptions, 40 Minn. L. Rev. 391, 398.
See, McCormick, Evidence, p. 664.