Brown

Victor Brown, plaintiff and appellant, is a minor child 1 who while riding his bicycle was struck by a car driven by Gregory Peter Connolly, defendant and respondent. The accident occurred in May 1957 when plaintiff was 6 years old. Two trials have been held in this case. The first resulted in a judgment for defendant, but it was reversed on appeal on the ground of incorrect instructions. (Brown v. Connolly (1962) 206 Cal.App.2d 582 [ 24 Cal.Rptr. 57 ].) The second trial also resulted in a judgment for defendant.

This appeal is concerned with possible contributory negligence of the minor plaintiff and his failure to testify due to an alleged loss of memory resulting from the accident. Under ordinary circumstances if a party cannot testify because of amnesia induced by injuries suffered in the accident involved in the litigation, he is entitled to a presumption that he acted with due care. (Scott v. Burke (1952) 39 Cal.2d 388 [ 247 P.2d 313 ]; Powley v. Appleby (1957) 155 Cal. App.2d 727 [ 318 P.2d 712 ] ; De Yo v. Umina (1953) 121 Cal.App.2d 505 [ 263 P.2d 623 ].) This presumption heretofore has arisen either where the party testified as to his own loss *394 of memory (see Scott…

I adhere to the views set forth in my dissenting opinions in Speck v. Sarver, 20 Cal.2d *399 585, 590 [ 128 P.2d 16 ], and Scott v. Burke, 39 Cal.2d 388, 402 [ 247 P.2d 313 ], that presumptions are not evidence and that a presumption should not be invoked against the party who already has the burden of proving that the presumed fact does not exist. I concur in the judgment under the compulsion of those cases, however, for they are the law of this state until they are overruled or changed by statute.

I dissent. I would affirm the judgment for the reasons expressed by Mr. Justice Fourt in the opinion prepared by him for the District Court of Appeal, which reads, as follows:

"This is the second appeal from a judgment in favor of defendants. The ease was originally tried before a jury. The cause was reversed on appeal solely upon the ground that an erroneous instruction had been given by the trial court. (Brown v. Connolly, 206 Cal.App.2d 582 [ 24 Cal.Rptr. 57 ].) ”

"The law presumes that Victor Brown in his conduct at the time of and immediately preceding the accident was exercising ordinary care and was obeying the law.

“ ‘This presumption is a form of evidence. It will support a finding in accord with the presumption where there is no proof to the contrary; and it will support such a finding in the face of contrary evidence if your judgment so directs after weighing the conflicting evidence.

“ ‘When such a conflict exists, it is the jury’s duty to weigh the presumption and any evidence that may support it against the contrary evidence and to determine which, if either, preponderates. Such deliberations, of course, shall be related to and be in accordance with my…