concurring.
I concur in the remand of this case for a new trial, but would afford the presumption of due care different weight than the majority.
In this case, Waddle had no recollection of the events surrounding the accident. As this Court held in Auel v. White, 389 Pa. 208, 132 A.2d 350 (1957):
Where a plaintiffs mind is a blank as to an accident and all its incidents, the presumption is that he did all that the law required him to do and was not guilty of contributory negligence____ The presumption, however, is a rebut-table one and must give way when the facts as established by plaintiffs evidence show that he was guilty of contributory negligence____ (Citations omitted)
389 Pa. at 214, 132 A.2d at 353. Therefore, Waddle was entitled to a jury instruction on the presumption of due care and the trial court erred in its refusal to so instruct the jury.
However, I must disagree with the majority’s characterization of the use of a presumption of due care. The majority opinion states, “[t]hus, if any evidence has been presented in plaintiff’s case in chief to establish contributory negligence as a matter of law, then the presumption must fail.” Maj. opinion at 647. Here, no evidence was presented in Waddle’s case in chief that he acted unreasonably. However, even if such evidence had been presented, I disagree that the presumption must fail.
As stated in my dissenting opinion in Yandrich v. Radic, 499 Pa. 271, 453 A.2d 304 (1982):
*650[T]he presumed fact — that the decedent was using due care at the time of the accident which caused his death— is to be submitted to the jury as evidence, to be weighed by the jury with any conflicting evidence on the issue of decedent’s contributory negligence.
499 Pa. at 276, 453 A.2d at 306.
Thus, the presumption of due care would not vanish for those entitled to it by the mere presentation of evidence of contributory negligence. The purpose of the presumption is to assist those who cannot testify concerning the circumstances surrounding the accident.
[T]he jury should be instructed to view the presumed fact as the equivalent of testimony by the decedent that he was using due care at the time of the accident. In this way, the decedent’s death will not deprive him of the benefit of the presumption to which our cases hold that he is entitled.
Yandrich, 499 Pa. at 277, 453 A.2d at 306-307. The presumption applies to a deceased plaintiff as well as the plaintiff whose “mind is a blank as to an accident and all its incidents,” as the plaintiff in the present case.
Thus, while I concur that a new trial must be granted because of the trial court’s failure to instruct the jury as to the presumption of due care, I would hold that the presumption should be given the weight of evidence.
PAPADAKOS, J., joins this concurring opinion.