(concurring).
The presumption that the person injured used due care for his own safety has no bearing on this case. Such presumption merely places on the adversary the burden of going forward with the evidence and making a prima facie case on that issue. It disappears from the case as soon as sufficient evidence is produced from which the fact trier could reasonably find that the deceased failed to use due care. Although it is sometimes argued and the language of some decisions seem to indicate that express eyewitness testimony of the actions of the favored party at the time in question is necessary in order to overcome such presumption such is not the case for the burden of going forward with the evidence may be overcome by circumstantial evidence, for a prima facie case can be established by circumstantial evidence the same as by direct testimony. This is the Thayerian theory subscribed by Wigmore and in this kind of a case by Morgan and adopted by the American Law Institute’s Model Code of Evidence and apparently approved by this court by a long line of cases.7
*319■While only one other Justice concurred with what I said in the prevailing opinion in the Tuttle case on the evidence required to nullify this kind of a presumption, both the opinion of Mr. Chief Justice Wolfe and Mr. Justice Crockett in that case are inconsistent with the Chief Justice’s contention made in that case and here that such presumption is nullified by the production of any evidence. Mr. Justice Crockett contended that since the evidence that decedent was negligent could be true only if he was traveling toward the south and the jury found that he was traveling toward the north the jury was correctly instructed that if they so found there was a presumption that he used due care. In other words, he held that although there was sufficient evidence to make a prima facie case still under the facts of that case the presumption was not nullified. This is inconsistent with the theory that the presumption is nullified upon the production of any evidence but is consistent with the theory that it is not nullified until a prima facie case has been made against the presumed fact.
Although the Chief Justice urges in the Tuttle case, as here, that such presumption disappears upon the production of any evidence on the issue of whether the decedent used due care, he emphasizes in both cases that such presumption places on the defendant only the burden of going forward with the evidence. This being true, it is clear that a party is not relieved from such burden until a prima facie case has been made in his favor. His claim that the presumption is nullified by the introduction of any evidence is inconsistent with his assertion that such presumption places the burden of going forward with the evidence on the defendant for such burden is not satisfied by the mere introduction of some evidence. Of course, some presumptions which merely deal with the burden of going forward with the evidence are nullified upon the introduction of less convincing evidence than others. Thus the presumption of sanity in a criminal case is nullified by the introduction of evidence reasonably sufficient to create a reasonable doubt that the accused was sane. In such case, it is probably correct to say that such presumption disappears upon the production of any evidence which tends to show his lack of sanity, but in the ordinary civil case even with the burden of persuasion in his favor a party does not make a prima facie case by merely creating a reasonable doubt in his favor. Usually where the term “any evidence” is used in this connection it is merely being used loosely.
A presumption is merely a rule of law requiring the trier of the facts to assume one fact from proof of another fact or set of facts. This kind of a presumption merely places on the disfavored party the burden of going forward with the evidence; it is completely *320nullified upon the production of prima facie evidence to the contrary. In the absence of such contrary evidence, the court should direct the jury to assume the presumed fact. The judge and not the jury determines when the evidence is sufficient and when he concludes that it is, he submits the issue of fact which would otherwise be presumed to the jury to be determined from the evidence along with the other facts without mentioning the presumption. The facts on which the presumption is based may or may not tend to prove or have probative value in proving the presumed fact. In the Tuttle case, Mr. Chief Justice Wolfe said “* * * from the experience of mankind the law concludes that men do not knowingly or intentionally act in derogation of their instinct to preserve themselves”. Here the basic facts are that a person was accidentally killed; since normally persons do use due care for their own preservation, the basic facts logically tend to prove that the decedent used due care. But the presumption is not this logical inference nor the basic facts themselves but is a rule of law. This rule of law ceases to affect the trial or the determination of the facts in question as soon as a prima facie case is established to the contrary, and is said to thereupon disappear from the case, but the basic fact that a person was accidentally killed still remains in evidence and, still in the light of human experience, that a person normally uses due care for his own protection, logically tends to prove that decedent was free from negligence the same as it did before the presumption was nullified by other evidence. The nullification of the presumption does not eliminate the evidence of -the basic facts from the case nor nullify any logical inference that might be drawn from such facts; they remain in the case and may be considered by the jury along with the other facts in the case for what they are worth and may be weighed with the other evidence the same as though there never had been a presumption. Of course, such evidence would not be strong or convincing in the face of convincing direct evidence to the contrary. A presumption being merely a rule of law cannot be weighed as against evidence; it performs only a procedural function of which party must go forward with the evidence and prove a prima facie case; when that is proved, the presumption become ineffective and drops out of the case, but the basic facts on which the presumption is based remain in the case and may be weighed by the jury with the other evidence and their effect as evidence is only overcome by more convincing contrary evidence which is a question for the jury to decide and not for direction or comment by the court.
From the evidence produced in this case, the jury could reasonably find that, decedent rode his bicycle into an in*321tersection with a through highway and with a stop sign against him during the nighttime, without the statutory or ordinance required lights and without ascertaining that defendant’s cab was approaching so nearly as to constitute an immediate hazard until it was too late to avoid a collision, and in so doing he was guilty of negligence which proximately caused or contributed in causing the accident and his death. Such being the case the presumption that he used due care for his own safety has no effect on this case.
There is another reason why this presumption does not affect the result in this case. Here the defendant has the burden of persuading the trier of the facts that decedent was guilty of contributory negligence which proximately caused his death. Such being defendant’s burden he, without the presumption, has the burden of not only going forward with the evidence but also of persuading the trier of decedent’s fault. So, since defendant not only has the burden of going forward with the evidence but of persuading the jury on that question, such presumption would not affect defendant’s burden at all.8
Though there is ample evidence from which the trier could reasonably find these issues against plaintiffs, that does not mean that the court could direct a verdict against them. In determining that question we must consider all the evidence and inferences which may be drawn therefrom in a light most favorable to plaintiffs and if when so considered the trier could reasonably not be convinced that decedent was guilty of negligence which proximately caused his death, then there was a jury question and the case should be reversed. The plaintiffs do not have the burden of proving that decedent was free from negligence which proximately caused the accident or any particular fact or set of facts on those issues, but defendant is entitled to a directed verdict only if the evidence is such that the jury *322would have to act unreasonably if they were not convinced of decedent’s fault in respect to such issues. Defendant has the burden of proving decedent was guilty of contributory negligence proximately causing the accident. Also in considering the evidence we should keep in mind that there is no direct evidence of what decedent did or how he got to the place of the accident, and that all of the direct evidence on the circumstances surrounding the accident comes from the driver of the taxicab who is an interested witness, whose testimony may reasonably- be discounted.9 If we had decedent’s version of these events, it would probably present a very different picture.
Keeping in mind defendant’s burden of proof and that all the direct evidence on the events surrounding the accident comes from a witness whose interests are against the plaintiffs, I think that the jury could reasonably not believe some of the statements of fact even in the prevailing opinion and much of the cab driver’s testimony. Thus the driver’s fare whom he picked up immediately after the accident and decedent’s son who talked with the driver during the afternoon of the day of the accident each testified that the driver told him that he did not see the bicycle until after he felt its impact with the cab. So it would be reasonable to not believe his testimony that he saw the front wheel of the bicycle when he was 10 or 15 feet from it. Also the driver’s testimony that he was only traveling from 20 to 25 miles per hour, and many other details which he testified to, the trier of the facts could reasonably not believe. In this connection I think the jury should be at liberty to consider facts which are probable or only possible without direct proof of their existence in making up their minds on what to believe. Although I consider this a very close case I concur that there were issues to be presented to the jury and that the court erred in directing a verdict.
See Thayer, Preliminary Treaties on Evidence, p. 313 (1898); Wigmore on Evidence, 3d Ed., Sec. 2490 to 2493; American Law Institute’s Model Code of Evidence, Ch. 8, and Rules 701 to 704, with comments thereon. For my views on presumptions see Tuttle v. Pacific Intermountain Express Co., 121 Utah 420, 242 P. 2d 764, 772, 774, and authorities therein cited.
See Presumptions: Their Nature, Purpose and Reasons, by Edmond M. Morgan, pages 15 and 22.
See Smith v. Industrial Comm., 104 Utah 318, 140 P. 2d 314.