Bechard v. Lake

On plaintiff's motion for new trial. Plaintiff's intestate, Eugene E. Bechard, while walking on the highway, was instantly killed as the result of collision with an automobile operated by the defendant. Suit was brought under the death-liability statute. Under R. S., Chap. 96, Sec. 50, the person for whose death action is brought is presumed to have been in the exercise of due care at the time of all acts in any way related to his death, and if contributory negligence be relied upon as a defense, it must be pleaded and proved by the defendant. The defendant pleaded such contributory negligence. It is incumbent upon the plaintiff to prove negligence on the part of the defendant. If such negligence is proved, it is incumbent upon the defendant, if he would avoid liability, to prove contributory negligence on the part of the plaintiff's intestate as a proximate cause of the injury. This shifting of the burden of proof works no change in the underlying principles of law. If the plaintiff's intestate's own want of ordinary care is proved to have been contributory to his death, plaintiff can not prevail. Jones v. Manufacturing Co., 92 Me. 565, 43 A. 512; Levesque v. Dumont, 117 Me. 262, 103 A. 737; Cullinan v. Tetrault, 123 Me. 302, 122 A. 770; Danforth v. Emmons, 124 Me. 156, 126 A. 821; Field v. Webber, 132 Me. 236, 169 A. 732; Ward v. Power & Light Co., 134 Me. 430, 187 A. 527.