Mitchell, J.
At about four o’clock on the afternoon of May 23, 1940, H. E. DeBuhr, the plaintiff in this action, was driving his Chevrolet automobile on a graveled highway which runs in an easterly and westerly direction. He was driving east and when he reached a point about a mile and a half from the town of Rockford, in Floyd county., Iowa, he saw an automobile on a lane or driveway which runs from-a field to the south and intersects the main highway from the south, forming a T. According to the plaintiff’s testimony, he first saw the car coming into the highway from this lane when he was about 150 feet from the lane. He put his foot on the brake, and then he saw the automobile in the lane stop its forward movement toward the highway and start backing toward the south or
toward tlie field. Plaintiff says he thought the road was clear and drove on at a rate of speed of between 45 and 50 miles an hour.- When he was within 4 feet Of the entrance of the lane to the highway the car of the defendant’s intestate, A. B. Taylor, appeared in front of him, and to avoid colliding with the automobile, plaintiff swerved his automobile around the Taylor car, lost control of it, and, about 200 feet down the highway, went into the ditch, injuring himself, for which injuries this cause of action was brought.
The only witness who testified in regard to the accident was the plaintiff himself; in fact, he was the sole and only witness with the exception of a civil engineer who made a plat of the road. A. B. Taylor, the driver of the other car, died between the time of the accident and the time of the trial of this cause but his death was not in any way caused by the accident. His administratrix was substituted as defendant.
The defendant offered no evidence and at the close of the plaintiff’s evidence made a motion for a directed verdict, which was overruled by the lower court and the case submitted to the jury, which returned a verdict for the defendant. Plaintiff, being dissatisfied, has appealed.
The only error alleged is that the court erred in giving instruction No. 5, which we quote:
“In determining whether or not, at the time and place in question, the said A. B. Taylor was in fact negligent in the respects claimed by plaintiff, it is proper for you to take into consideration the rule of law in this state that where a party to the action is deceased, and there is no eyewitness, or any obtainable direct evidence as to what the deceased did or failed to do by way of precaution at and immediately before the accident, the presumption is that he, prompted by natural instinct, was in the exercise of due care for his own safety, and that the burden is on the plaintiff to offer sufficient competent evidence showing the negligent operation of the deceased’s automobile, in the respect claimed, to overcome this presumption.”
, This instruction was given in behalf of, and at the request of, the appellee, the defendant below. Neither party in his brief cites any cases directly passing upon this question,
to wit: Is the defendant in an action such as the case at bar entitled to a no-eyewitness-rule instruction in his favor? The appellee cites the ease of Swift & Co. v. Holoubek, 60 Neb. 784, 84 N. W. 249, 62 Neb. 31, 86 N. W. 900, but a reading of that case clearly shows tha't the no-eyewitness rule was not involved. Our attention is also called to the case of Vance v. Grohe, 223 Iowa 1109, 1117, 274 N. W. 902, 905, 116 A. L. R. 332. We quote:
“While this matter usually arises in connection with the question of contributory negligence on the part of one who has been injured or killed in an accident, we see no reason why the same principle is not applicable in any case where the issue is the determination of whether a party exercised or did not exercise care.”
The statement was mere dictum in the case and had no bearing whatever on the holding of the court in the cited case. In fact, in the Vance v. Grohe case, at page 1115 of 223 Iowa, page 905 of 274 N. W., the court quotes from the case of Burk v. Walsh & Oltrogge, 118 Iowa 397, 400, 92 N. W. 65, 66, as follows:
“ ‘This instruction is contrary to the rule recognized in numerous decisions of this court to the effect that the instinct of self-preservation is to be taken into account as tending to show freedom from contributory negligence only where direct evidence as to whether the injured party did or did not exercise reasonable care is not attainable.’ ” (Citing numerous cases.)
So in that case we recognized the fact that the instinct of self-preservation is to be taken into account as tending to show freedom from contributory negligence, rather than showing that a defendant who was not charged with showing freedom from contributory negligence was using due care at the time of the accident. The appellee also calls our attention to the case of In re Estate of Hill (Gaard v. First Tr. & Sav. Bk.), 202 Iowa 1038, 208 N. W. 334, 210 N. W. 241. In 208 N. W. 334, there will be found certain statements by way of dictum in regard to the no-eyewitness rule, but in 202 Iowa 1038, 210 N. W. 241, in an opinion on rehearing, the statements in re eyewitness rule were omitted. There is no statement therein which tends to
show that the defendant is entitled to the instruction complained of. In fact, it could- be argued that by the withdrawal of the language which was contained in the original opinion, this court, as it was then composed, "was opposed to the giving of the instruction on behalf of the defendant.
The rule as to the instinct of • self-preservation merely supplies inference for otherwise defective records in death actions that the deceased used due care, and does not furnish evidence of affirmative excuses offered for his negligence. The burden of proving the negligence of the appellee1 (defendant below) was at all times upon the appellant. Not only was he charged Avith the duty of showing negligence but he must also prove freedom from contributory negligence on his own part. This court, in the case of Hittle v. Jones, 217 Iowa 598, 606, 250 N. W. 689, 693, used the following language:
“This rule relating to the instinct of self-preservation goes no farther than to supply, for an otherwise deficient record, the inference that the appellant’s intestate used due care. Ames v. Waterloo & Cedar Falls Rapid Transit Co., 120 Iowa 640, 95 N. W. 161.”
In the case at-bar the record shoAvs that the appellee’s intestate could see down the highway a distance of several hundred feet. If he did look, he must have seen the appellant as he approached. The appellant bad the right of way and it was the duty of the appellee’s intestate as he entered this highway to ascertain Avhether or not there was a car approaching. This he clearly did not do. The no-eyewitness-rule presumption is used in connection with contributory negligence and is not available in cases where the negligence is proved by eyewitnesses and physical facts. See Edwards v. Peidey, 223 Iowa 1119, 274 N. W. 910. It was incumbent upon the appellant to prove that the appellee’s intestate was negligent. This he did by direct testimony, showing what he saw by the physical facts and the circumstances surrounding the injury.
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Mitchell, J.
At about four o’clock on the afternoon of May 23, 1940, H. E. DeBuhr, the plaintiff in this action, was driving his Chevrolet automobile on a graveled highway which runs in an easterly and westerly direction. He was driving east and when he reached a point about a mile and a half from the town of Rockford, in Floyd county., Iowa, he saw an automobile on a lane or driveway which runs from-a field to the south and intersects the main highway from the south, forming a T. According to the plaintiff’s testimony, he first saw the car coming into the highway from this lane when he was about 150 feet from the lane. He put his foot on the brake, and then he saw the automobile in the lane stop its forward movement toward the highway and start backing toward the south or
toward tlie field. Plaintiff says he thought the road was clear and drove on at a rate of speed of between 45 and 50 miles an hour.- When he was within 4 feet Of the entrance of the lane to the highway the car of the defendant’s intestate, A. B. Taylor, appeared in front of him, and to avoid colliding with the automobile, plaintiff swerved his automobile around the Taylor car, lost control of it, and, about 200 feet down the highway, went into the ditch, injuring himself, for which injuries this cause of action was brought.
The only witness who testified in regard to the accident was the plaintiff himself; in fact, he was the sole and only witness with the exception of a civil engineer who made a plat of the road. A. B. Taylor, the driver of the other car, died between the time of the accident and the time of the trial of this cause but his death was not in any way caused by the accident. His administratrix was substituted as defendant.
The defendant offered no evidence and at the close of the plaintiff’s evidence made a motion for a directed verdict, which was overruled by the lower court and the case submitted to the jury, which returned a verdict for the defendant. Plaintiff, being dissatisfied, has appealed.
The only error alleged is that the court erred in giving instruction No. 5, which we quote:
“In determining whether or not, at the time and place in question, the said A. B. Taylor was in fact negligent in the respects claimed by plaintiff, it is proper for you to take into consideration the rule of law in this state that where a party to the action is deceased, and there is no eyewitness, or any obtainable direct evidence as to what the deceased did or failed to do by way of precaution at and immediately before the accident, the presumption is that he, prompted by natural instinct, was in the exercise of due care for his own safety, and that the burden is on the plaintiff to offer sufficient competent evidence showing the negligent operation of the deceased’s automobile, in the respect claimed, to overcome this presumption.”
, This instruction was given in behalf of, and at the request of, the appellee, the defendant below. Neither party in his brief cites any cases directly passing upon this question,
to wit: Is the defendant in an action such as the case at bar entitled to a no-eyewitness-rule instruction in his favor? The appellee cites the ease of Swift & Co. v. Holoubek, 60 Neb. 784, 84 N. W. 249, 62 Neb. 31, 86 N. W. 900, but a reading of that case clearly shows tha't the no-eyewitness rule was not involved. Our attention is also called to the case of Vance v. Grohe, 223 Iowa 1109, 1117, 274 N. W. 902, 905, 116 A. L. R. 332. We quote:
“While this matter usually arises in connection with the question of contributory negligence on the part of one who has been injured or killed in an accident, we see no reason why the same principle is not applicable in any case where the issue is the determination of whether a party exercised or did not exercise care.”
The statement was mere dictum in the case and had no bearing whatever on the holding of the court in the cited case. In fact, in the Vance v. Grohe case, at page 1115 of 223 Iowa, page 905 of 274 N. W., the court quotes from the case of Burk v. Walsh & Oltrogge, 118 Iowa 397, 400, 92 N. W. 65, 66, as follows:
“ ‘This instruction is contrary to the rule recognized in numerous decisions of this court to the effect that the instinct of self-preservation is to be taken into account as tending to show freedom from contributory negligence only where direct evidence as to whether the injured party did or did not exercise reasonable care is not attainable.’ ” (Citing numerous cases.)
So in that case we recognized the fact that the instinct of self-preservation is to be taken into account as tending to show freedom from contributory negligence, rather than showing that a defendant who was not charged with showing freedom from contributory negligence was using due care at the time of the accident. The appellee also calls our attention to the case of In re Estate of Hill (Gaard v. First Tr. & Sav. Bk.), 202 Iowa 1038, 208 N. W. 334, 210 N. W. 241. In 208 N. W. 334, there will be found certain statements by way of dictum in regard to the no-eyewitness rule, but in 202 Iowa 1038, 210 N. W. 241, in an opinion on rehearing, the statements in re eyewitness rule were omitted. There is no statement therein which tends to
show that the defendant is entitled to the instruction complained of. In fact, it could- be argued that by the withdrawal of the language which was contained in the original opinion, this court, as it was then composed, "was opposed to the giving of the instruction on behalf of the defendant.
The rule as to the instinct of • self-preservation merely supplies inference for otherwise defective records in death actions that the deceased used due care, and does not furnish evidence of affirmative excuses offered for his negligence. The burden of proving the negligence of the appellee1 (defendant below) was at all times upon the appellant. Not only was he charged Avith the duty of showing negligence but he must also prove freedom from contributory negligence on his own part. This court, in the case of Hittle v. Jones, 217 Iowa 598, 606, 250 N. W. 689, 693, used the following language:
“This rule relating to the instinct of self-preservation goes no farther than to supply, for an otherwise deficient record, the inference that the appellant’s intestate used due care. Ames v. Waterloo & Cedar Falls Rapid Transit Co., 120 Iowa 640, 95 N. W. 161.”
In the case at-bar the record shoAvs that the appellee’s intestate could see down the highway a distance of several hundred feet. If he did look, he must have seen the appellant as he approached. The appellant bad the right of way and it was the duty of the appellee’s intestate as he entered this highway to ascertain Avhether or not there was a car approaching. This he clearly did not do. The no-eyewitness-rule presumption is used in connection with contributory negligence and is not available in cases where the negligence is proved by eyewitnesses and physical facts. See Edwards v. Peidey, 223 Iowa 1119, 274 N. W. 910. It was incumbent upon the appellant to prove that the appellee’s intestate was negligent. This he did by direct testimony, showing what he saw by the physical facts and the circumstances surrounding the injury. If the appellee was entitled' to the presumption which the eomplained-of instruction gave her, it would in fact be giving her the benefit of an inference that the appellee’s intestate did look; that he acted as a reasonable and prudent man; and that he could see, and after
seeing he had a reasonable time to enter upon the highway. All of these things are contradicted by direct testimony as to what appellee’s intestate did, for appellant testified that ap-pellee’s intestate was backing away from the road as he was approaching the intersection of the lane and highway. Appellee was not charged with the responsibility of showing what hex-intestate did. All that she had to do was to offer as affirmative proof whatever evidence she might have had in regard to what appellee’s intestate did at that time. To say that she was entitled to a presumption would be in fact giving her affiranative proof rather than a mere presumption. We can come to no other conclusion than that the lower court erred in giving instruction No. 5.
Appellee contends, however, that she was entitled to a directed verdict and any error in the court’s instruction against the appellant is not prejudicial.
We turn to the record to ascertain the facts. The appellant was familiar with the highway on which he was driving and knew the lane or drive which was being used by appellee’s intestate. When the appellant was about 150 feet west of this lane or driveway he saw an automobile driven by A. B. Taylor moving up this lane toward the highway. At that, time the DeBuhr ear was traveling between 45 and 50 miles an hour, and he testified that he put his foot on the brake when he saw the Taylor car and that he watched the Taylor car. He saw it move south toward the field, backing away from the main highway. When appellant noticed it moving backward he removed his foot from the brake and proceeded on at the rate that he had been traveling, to wit, 45 to 50 miles per hour. Appellant testified that he did not again see the Taylor car until he was within 4 feet of it, at which time the Taylor car was directly in front of him in the main part of the highway, turning east. At that moment, he turned to the left, passed around the Taylor car, drove on down the graveled highway for a distance of approximately 200 feet, and then went into the ditch. He did not strike the Taylor car. The accident happened about 4 o’clock in the afternoon of a bright, clear May day. The road was a level graveled highway in good condition.
Appellant saw the Taylor car approach the highway from the lane, stop and back up. Naturally, he assumed, and properly so, that the driver of the car would wait until he, appellant, had cleared that portion of the highway opposite the lane. It was reasonable to infer that the driver stopped and backed up for the very purpose of allowing appellant to pass. The conduct of Taylor in stopping and backing up led appellant to believe that it was not necessary for him, in the exercise of ordinary care, to maintain a constant lookout.
Appellant had a right to assume, until he had knowledge or notice to the contrary, that Taylor would not drive onto the highway without exercising reasonable care. It was Taylor’s duty not to enter the highway until he believed, and had a right to believe, that he could do so with due regard to the safety of appellant or others using the highway. Carstensen v. Thomsen, 215 Iowa 427, 431, 245 N. W. 734; Olson v. Shafer, 207 Iowa 1001, 1004, 221 N. W. 949.
Appellant was not under the duty of watching the Taylor car at all times. He was required' only to exercise reasonable care in maintaining a lookout. Appellant testifies that he did look when he was 150 feet from the lane. At that time he saw the Taylor car back down away from the highway on which he was traveling and on that account he proceeded on down the road. It is the opinion of the majority of this court that the lower court was right in overruling the motion and in submitting the case to the jury. Due to the error in the instruction given as hereinbefore pointed out, it necessarily follows that this case must be, and it is,- — Reversed.
WeNNErstrum, C. J., and Bliss, Garfield, Sager, and > Oliver, JJ., concur.
Miller, J., dissents.