¶1 (dissenting) — I think the instruction defining the presumption of due care on the part of the deceased was not only erroneous, but prejudicial. It was erroneous in that it failed to tell the jury that the presumption of due care could not be overcome by interested testimony. It was prejudicial in that it was upon a vital issue in the case. I think the presumption was still in the case at the time it was submitted to the jury, and the appellant was entitled at that time to a proper instruction upon it. Had the jury been instructed that the presumption could be overcome only by disinterested testimony, the verdict might well have been for plaintiff. For, in my opinion, the physical facts were not in themselves sufficient to overcome it.
¶2 Blake, C. J., and Millard, J., concur with Main, J.