(concurring in affirmance). Aside from and in addition to insistence that there is a “total lack of evidence” tending to support the trial judge’s finding that the driver of the car insured by plaintiff was free from contributory negligence, defendant takes this general position in brief filed here:
“Defendant submits that the record is barren of any evidence that would support any of the following necessary facts: That Willie Powe was driving the defendant’s vehicle; that Willie Powe had granted permission to anyone else to drive the vehicle; *554that the vehicle in which Powe was found was proceeding along highway M-81; that there was any witness of any act whatsoever on the part of Willie-Powe, or anyone in privity with him. And the defendant further submits that there is insufficient evidence to support a finding of fact as to any negligence on the part of Willie Powe.”
This case is a substantial fact-duplicate of Welty Estate v. Wolf Estate, 345 Mich 408. There were no' survivors, and no oath-taking witnesses able to relate anything about the final searing moments. Proven circumstances* †nevertheless gave rise in the* court below to fair inferences authorizing conclusion that the driver proceeding on the nonfavored highway was guilty of actionable negligence and that the driver proceeding on the favored way was not guilty of contributory fault.
So far as concerns the decedent driver proceeding east on nonfavored M-81, the physical circumstances related in Chief Justice Dethmers’ opinion fully justify the finding of actionable guilt on his part. True, the presumption of due care attended this driver, just as, it did the driver approaching on the favored way, yet it established nothing as a matter of law distinguished from its provisional effect in the solution of typical questions of fact. Thus, the trier of facts was entitled to apply the-presumption to the driver proceeding on the favored way and to deny its application to the driver required by law to stop before entering the intersection of death.†
*555Turning now to tlie cases* defendant relies upon: Marciniak gives him no help; it concludes, as I conclude in the case before us, that “There was enough evidence relative to the place and character of the •collision to present as an issue of fact defendant’s negligence and decedent’s contributory negligence.” As to Holley, the presumption of due care was neither urged nor considered and the driver’s adjudged negligence was held imputable to plaintiff’s decedent as a matter of law. With regard to Barry, it follows Schillinger’s rule† (without referring to Schillinger) that the presumption of due care disappears •on account of presence of an “eyewitness” whose oath has not been taken (see opinions concurring in result, Hett v. Duffy, 346 Mich 456, 462-477).
Here, then, is the salient reason for disagreement on my part with reasoning of the Chief Justice. Continued recognition of Barry — and, hence, Schil-linger — simply perpetuates indefensible mutilation of the presumption of due care by naked assumption that an unsworn person “saw something.” We are, I think, overdue for renewal of respect for Gillett’s time-tried summary of rules for application or rejection of such presumption. That summary is quoted as follows (p 421 of report):
“While the above may serve as a rough classification of the decisions relative to the presumption of due care, it will be seen that the real test in each case is whether or not the evidence tending to show contributory negligence, be it direct or circumstantial, is so conclusive that reasonable and unprejudiced minds could not fail to be convinced that decedent was careless. If there is room for reasonable doubt, the question must be submitted to the jury. And *556while the jury, in weighing the evidence, may not consider the presumption, yet if, uninfluenced by the presumption, they reach the conclusion that the evidence tending to show decedent’s negligence is not entitled to credit and should be disregarded, the presumption may then he considered as remaining in force so far as may be necessary to establish the fact that the deceased exercised proper care in all respects not expressly established by the evidence. It was not entirely displaced, but remained in abeyance pending the jury’s reaching this preliminary decision as to the credence to be given the evidence on the particular point in which negligence was claimed.”
I concur in affirmance, with costs to plaintiff.
We are constrained to note, from the record in this case, that the testimony certified to us as containing the substance of that which is “necessary to a full understanding of said testimony” consists of but 17 printed pages; that trial of the case below was commenced December 29, 1953, and adjourned to March 8, 1954 (on which later date the trial was concluded), and that the case was not decided until May 1, 1956. The delay is inexcusable.* We record observation of the noted facts in order that lawyers and judges may be apprised of this latest example of cause for adoption of Court Rule No 78 (effective March 1, 1956) and of impending re-examination of our administrative responsibility under sections 4 and 5 of article 7 (Const 1908).
Smith, Edwards, and Voelker, JJ., concurred with Black, J.In Schneider v. Pomerville, 348 Mich 49, we paid tribute to the evidentiary worth of physical circumstances — once verity thereof is established — in motor accident cases.
Three present members of this Court said, in Welty, supra (p 419 of report) :
“It is said, however, that the presumption of due care attended', the driver in this case. Agreed. But the presumption is ox>posed' by circumstantial evidence of negligence on his part, and the-i result -is a typical question of fact- to be disposed of under rules-*555given in the useful and carefully considered opinion of Gillett v. Michigan United Traction Co., 205 Mich 410.”
Schillinger v. Wyman, 331 Mich 160.
“Prompt decision on the merits is imperative, for justice delayed is often justice denied. Sometimes a wrong decision quietly made is better than a right decision after undue procrastination. Some concession must be made to the shortness of human life.” (Foreword, p 3, American Law Institute Model Code of Evidence.)