(dissenting).
I dissent from that part of the majority opinion concerning defendant Gallegos for the following reasons.
The majority states: “[h]ere we have no evidence that decedent was alive at the time the Gallegos car struck the body. The only evidence on this question is that he was dead at the time.” I do not so interpret the evidence.
The only evidence in the record regarding life or death prior to the Gallegos impact is from defendant Maes. Maes testi- - fied regarding liis time to observe decedent as follows:
“Q. Did you stand near the body right there when you got down from the car and ran to the body, about 10 seconds ?
“A. No, I stated that it was 10 seconds. I know you are going to bring it out, but it could have been less.
“Q. And it could have been ten seconds ?
“A. Well, let’s say it was just about the time that — I didn’t have time to do anything, just to try and signal the car to stop.
“Q. But my question, Mr. Maes, is whether you were there standing by the body about ten seconds?
“A. Yes, I’ll say, yes.”
Maes then testified as to his observation of decedent:
“Q. And you can sit down now. Thank you. When you arrived at the location of the body, which you placed as somewhere around here, did you —you stayed 10 seconds there — I am sure you are not standing there with your stop watch. You don’t know, you just stood there but you did have time to observe the body?
“A. Yes.
“Q. Was the body at the time absolutely motionless ?
“A. From what I noticed, yes.
“Q. Was there any sound whatever emanating or coming from the body?
“A. Not that I heard.
“Q. Did you observe any signs of life whatever at that time ?
“A. No.
“Q. And that was prior to your seeing this car coming down from the south ?
“A. Yes.
“Q. You didn’t have too much time to wave, I believe you said. Didn’t you testify the car was almost on you when you started waving?
“A. Well, he wasn’t almost on iüe but he was close.
“Q. What would characterize as close in car lengths, one car length, two car lengths?
“A. I’d say three or four car lengths.
“Q. Three or four car lengths. So that at any speed at all you had very little time to wave, is that not correct?
“A. Yes.”
Gallegos testified she was travelling 35 or 40 miles per hour prior to the impact.
Further, there is no testimony in the record that the impact of the Maes vehicle would have been sufficient to cause death. Maes’ observation of the body for about ten seconds, after the shock of having struck a human being and under the pressure of an on-coming car, is not evidence of death. Maes merely noticed a motionless body. Bodies can be motionless for numerous reasons.
Presumption of Life.
Plaintiff is entitled to the use of presumptions in proving his case. There is a presumption of life of the decedent until proof of death. Rodak v. Fury, 31 A.D.2d 816, 298 N.Y.S.2d 50 (1969). A presumption of fact is merely an inference of fact adduced from customary human experience on proof of circumstances that usually or necessarily attend such fact. Once a condition is known or shown to exist it will be presumed to continue until the contrary is established by evidence. Slone-Carter Grain Co. v. Jones, 56 N.M. 712, 248 P.2d 1065 (1952) ; Petrakis v. Krasnow, 54 N.M. 39, 213 P.2d 220 (1949) ; Barrows v. Mutual Life Ins. Co. of New York, 48 N.M. 206, 147 P.2d 362 (1944) ; McClendon v. Dean, 45 N.M. 496, 117 P.2d 250 (1941) ; Board of Trustees of Town of Casa Colorado Land Grant v. Pooler, 38 N.M. 87, 28 P.2d 519 (1933) ; Corcoran v. Albuquerque Traction Co., 15 N.M. 9, 103 P. 645 (1909); Collected cases 31A C.J.S. Evidence § 124 (1964).
I see no logical reason why if life was shown at a given time (prior to impact of Maes) that it should not continue until evidence to the contrary is introduced (death after Gallegos impact). Hartford Fire Insurance Company v. Horne, 65 N.M. 440, 338 P.2d 1067 (1959). Any other conclusion would he contrary to established case law on the use and meaning of presumptions.
This presumption of fact, totally unrebutted by the evidence, was sufficient to take the issue of proximate cause to the jury.
Last Clear Chance of Gallegos.
Since plaintiff pleaded last clear chance and had evidence to support his theory, the trial court’s refusal to give plaintiff’s instruction on last clear chance was reversible error. Burnham v. Yellow Checker Cab, Inc., 74 N.M. 125, 391 P.2d 413 (1964).
We must view this evidence in a light most favorable to plaintiff. Burnham v. Yellow Checker Cab, Inc., supra.
(1) Decedent’s negligence was of a continuing nature. Compare Burnham v. Yellow Checker Cab, Inc., supra.
(2) As a result of his negligence he was in a position of peril from which he could not escape by the exercise of ordinary care. He need not know of his peril. Merrill v. Stringer, 58 N.M. 372, 271 P.2d 405 (1954).
(3) That defendant knew or should have known of decedent’s peril. In Burnham the cab driver did not see plaintiff but under the facts and reasonable inferences the jury was not bound by his denial. The same is true here. Maes was standing in the road waving and Gallegos did not see him. Gallegos was turned talking to a backseat passenger.
(4) Defendant had the last clear chance by the exercise of ordinary care to avoid the injury and failed to do so. See Merrill v. Stringer, supra.
Wrongful Death Action.
Thus, viewing the evidence from the posture of last clear chance the jury could properly decide a wrongful death action, and determine if there was any wrongful conduct on the part of Gallegos, and whether that wrongful conduct resulted in the death of decedent.
I respectfully dissent.