dissenting.
There is no area of the law where loose language and discordant decisions have given rise to complexities and subleties that would confound the most nimble and agile intellect more than the subject of presumptions, their scope *651and effect. The history of the development of the presumption of due care, which we are here considering, provides a stellar example of the obfuscation that is engendered. The rational basis justifying the wisdom of such a presumption is as questionable as the validity of its effect when it is employed. My disagreement with the majority is their lock-step adherence to an analysis which is not only confused but is also unnecessary. Erudition is not evidenced by engendering unnecessary complexities. I would seize this opportunity to eradicate the confusion this presumption has occasioned by identifying the instinct of self-preservation, which is the basis of the presumption,” and treat it as merely a factor that may be taken into consideration in evaluating the negligence of any party charged with such conduct.
As the majority recognizes, a presumption is not evidence and may not be used to substitute for evidence. It either directs a party to come forward with the evidence, i.e., the burden of production, or determines where the burden of persuasion lies, i.e., the burden of proof. Thus, a presumption merely allocates the respective responsibilities between the antagonists in the proceedings. It does not establish facts in favor of a given position.1 With this perspective the need for a presumption of due care for either a deceased or incapacitated plaintiff or defendant is at best questionable. What is certain is that any utility it may have is far outweighed by the confusion it creates.
It is well established that the plaintiff has the burden of proving the negligence of the defendant as the legal cause of the accident. This, therefore, places both the burden of production and persuasion upon the plaintiff to establish defendant’s negligence. The majority recognizes that the presumption of due care when asserted by the plaintiff *652plays no part in establishing the fact of the defendant’s negligence. Thus, the question that must be pursued is the role of the presumption in the resolution of a charge of contributory negligence raised by the defendant. Here, again, the critical factors appear to be clear. The defendant has the burden to establish the contributory negligence of the plaintiff. Heffernan v. Rosser, 419 Pa. 550, 215 A.2d 655 (1966); Stegmuller v. Davis, 408 Pa. 267, 182 A.2d 745 (1962); Brown v. Jones, 404 Pa. 513, 172 A.2d 831 (1961); Good v. City of Pittsburgh, 382 Pa. 255, 114 A.2d 101 (1955). This, therefore, means that both the production of the evidence and the obligation to persuade the factfinder are on the defendant as to this issue. In the scenario presented here the absence of a need for the presumption of due care favoring an incapacitated or deceased plaintiff would be evident. However, the situation was compounded by a number of decisions indicating that a pláintiff may not recover if evidence in his own case convicts him of contributory negligence. See Good v. City of Pittsburgh, supra; Perpetua v. Philadelphia Transportation Co., 380 Pa. 561, 112 A.2d 337 (1955); Lewis v. Quinn, 376 Pa. 109, 101 A.2d 382 (1954). Under former law in this Commonwealth, this arguably may have presented a problem because plaintiff would have been subject to a nonsuit if it appeared he was contributorily negligent. See Auel v. White, 389 Pa. 208, 132 A.2d 350 (1957); Rank v. Metropolitan Edison Co., 370 Pa. 107, 87 A.2d 198 (1952).2 Today under our rule of comparative negligence, any suggestion of a need for the presumption is removed. Where there is an issue of contributory negligence, whether that evidence is found in either the testimony presented by the plaintiff or from the *653evidence offered by the defendant, the matter is submitted to the jury for its consideration in determining the plaintiff’s right of recovery and the defendant’s extent of liability.
The presumption of due care is premised upon the normal instinct of self-preservation. This, of course, would be applicable to both plaintiff and defendant and is not in any way related to the severity of the injuries received by the parties as a result of the accident. To permit it to be used only by the party killed or incapacitated does not withstand the test of logic. Rather, it should be considered in assessing the credibility of the evidence against anyone charged with negligent conduct.
FLAHERTY and HUTCHINSON, JJ., join in this dissenting opinion.. Some of the language in our cases on this point has inadvertently confused this important principle. See, e.g., Potochnik v. Pittsburgh Railroad Co., 379 Pa. 154, 108 A.2d 733 (1954). (This Court affirmed per curiam on the opinion of the trial judge. It, therefore, appeared to accept the trial judge’s conclusion that the presumption of due care was a factual one which required rebuttal.)
. Even under former law it is questionable as to the legitimacy of the use of the presumption of due care by the plaintiff. Since the presumption was not evidence, although it allowed the matter to go to the jury, if that body followed its instructions the evidence of contributory negligence would require a verdict for the defendant since the presumption alone could not overcome it. If in fact there was countervailing evidence to establish that the plaintiff had not been negligent, the matter would be a jury question in any event.