California, United States of America
The following excerpt is from Lovett v. Hitchcock, 14 Cal.Rptr. 117, 192 Cal.App.2d 806 (Cal. App. 1961):
Defendants first assert that it was error to instruct that plaintiff was entitled to the presumption of due care. His loss of memory is conceded, as is the general rule that the presumption applies in such case (Scott v. Burke, 39 Cal.2d 388, 394, 247 P.2d 313). Defendants argue, however, that witnesses produced by plaintiff gave detailed evidence of the happening of the accident, thus barring his reliance on the presumption. But the mere fact that others testify fully as to the acts of plaintiff does not bar application of the presumption. The presumption is dispelled only 'if the fact proved by uncontradicted testimony produced by the party seeking to invoke the presumption, 'under circumstances which afford no indication that the testimony is the product of mistake or inadvertence * * * is wholly irreconcilable with the
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