(dissenting).
Estoppel by verdict facilitates the administration of justice in preventing relitigation by one party of a fact issue previously decided against him fairly. To apply this rule when the adverse determination was reached, or possibly reached, because of a principle of law applicable only because the plaintiff in the prior action for damages for wrongful death is given preferential treatment by reason of our statute does not serve this purpose.
In my opinion, the statutory presumption of due care does not relate exclusively to the issue of the decedent’s negligence. It does so in form, but not in substance or practical effect.
An instruction which permits a jury to presume due care on the part of one automobile driver, even though the evidence in the absence of such presumption would compel a finding of negligence, necessarily affects the jury’s evaluation of the other driver’s conduct. If a two-car collision is due to the fault of one or the other or both of the drivers, the process which eliminates the conduct of one as causative inevitably casts responsibility on the other. An intersection collision, for example, may occur because one driver or the other failed to yield the right-of-way. If the jury is free to presume that a deceased driver had the right-of-way regardless of the evidence, it is bound to find that the other failed to yield. A head-on collision, as another instance, may occur because one driver or the other or both crossed the centerline. The statutory presumption may result in a jury finding that *530the decedent was in his own lane of travel at impact. If so, it must find the defendant driver to have been in the wrong lane to account for the accident. Thus, the residual effect of the presumption is to influence decision as to the negligence of both drivers.
The unfairness of the situation which follows from the application of the statute in favor of the plaintiff only in an action for death by wrongful act seems evident. But until a change is made by legislative or judicial action, I believe that an adjudication of liability' in an action for death by wrongful act should not bar subsequent assertion by the defendant of a claim for damages resulting from the occurrence.