Beauchamp v. Olsen ( 1972 )

Bronson, P. J.

(dissenting in part and concurring in part). After a careful and close study of the record submitted to this Court, I am of the opinion that plaintiff was not contributorily negligent. For this reason I cannot agree that a remand upon the issue of liability is necessary.

At trial defendant offered two theories of contributory negligence. The second theory was rejected by the majority since plaintiff had a statutory right to drive in the right-hand lane and the facts negated the existence of misconduct. The majority, however, found that the first theory that plaintiff was driving too fast and failed to keep a proper lookout remained in the case. The submitted record reveals the uncontroverted fact that plaintiff was driving 10 m.p.h. under the speed limit and exercising due care. Although these facts negate contributory negligence, the majority’s conclusion is based upon plaintiff’s failure to conclusively prove freedom from fault. I find no reason to treat the two theories differently or impose this burden upon plaintiff.

The submitted record contains only a partial transcript and neither party via the adversary process has disclosed evidence of contributory negligence. We cannot assume that within the outstanding portions of the transcript (1) additional evidence upon the issue of fault exists, and (2) if it exists, it contains evidence of contributory negligence. This empty assumption should not be used to increase the burden of proof plaintiff has satisfied with the submitted record. If evidence of contributory negligence existed, defendant would surely have brought it to this Court’s attention by brief or demand upon plaintiff to produce the remaining transcript.

Since the record contains sufficient evidence to support a directed verdict, I would limit the remand. to the issue of damages.