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McQuay v. Schertle6/2/1999
rst, he disagreed that the jury should be allowed to resort to the application of a presumption in deciding contributory negligence when that issue was, in essence, a credibility battle: "No presumption artificially endowed with evidentiary weight was needful or useful to [the jury] in resolving th simple issue. . ." Id. at 743. Second, he argued that giving the presumption evidentiary weight would be tantamount to raising the defendant's burden of proof on contributory negligence to a standard higher than a preponderance of the evidence. Id. at 743-44. Finally, he pointed out that unlike most evidentiary presumptions, including the presumption of agency at issue in Grier, the presumption of due care is not premised on a logical connection between the basic fact proven (death) and the presumed fact (careful behavior) "the utility of which might go unnoticed by the jury in the absence of some instruction which would draw their attention to it." Id. at 745. Moreover, even if the presumption in Grier were to be considered comparable to the presumption of due care, "all that [the Maryland Court of Appeals] did in [Grier] was to leave in the case a permissible inference inconsistent with the defendant's weak, self-serving denial of the ultimate fact." Id. at 746.
In Bratton v. Smith, 256 Md. 695 (1970), the Court of Appeals applied its analysis in Grier to the presumption of due care on the part of the decedent in holding that the trial court had not erred in refusing to instruct the jury on the presumption. In that case, as the decedent was riding on a tractor that was pulling a hay wagon, he stood up and "perched" himself precariously between the tractor and the wagon. Id. at 698. He did so even though there was ample room for him in the wagon. Shortly thereafter, a car approached the tractor-wagon rig from behind, and the driver of the rig overreacted, pulling abruptly to the right. The decedent fell from the wagon to his death. The events surrounding the decedent's fall were not in dispute.
The trial court submitted the issues of primary negligence of the rig driver and contributory negligence of the decedent to the jury, which returned a general verdict in favor of the driver. On appeal, the plaintiff raised among other contentions the argument that it was error for the trial court not to have instructed the jury that "the deceased was entitled to the presumption that he was exercising due care on behalf of his own safety at the time of the accident." Id. at 701.
The Court of Appeals affirmed the judgment, concluding that the trial court correctly had declined to instruct the jury about the presumption. After reviewing several of its earlier decided cases about the presumption and the Fourth Circuit's opinion in Geils, the Court remarked:
" e would say, in sum, that the presumption of the exercise of due care on the part of the deceased plaintiff prevails, but that it may be undermined, or completely dissipated, by countervailing evidence. The court's instruction based on the facts of each case, should reflect to what extent, if any, the countervailing evidence has affected the presumption." 256 Md. at 704. The Court concluded that "the actions of the deceased with respect to his own safety . . . were such as not to have entitled the plaintiff to an instruction that the deceased was using due care for his own safety at the time of the accident. We think the trial Judge was correct in refusing such an instruction and indeed that, it would not have been error had he granted a directed verdict for the [rig driver] on the basis of the contributory negligence of the deceased. . . ." Id. at 704-05 (emphasis supplied).
In the case sub judice, both sides rely upo
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