George Sutherland

“ The Georgia statute involved in the Henderson Case was of an entirely different character. As construed by the Georgia court, it not only permitted the presumption of negligence to be given the effect of evidence to be weighed against opposing testimony and to prevail unless such testimony was found by the jury to preponderate, but it was fundamentally arbitrary, in that the mere fact of collision between a railway train and a vehicle at a highway grade crossing created a presumption that the accident was caused by the negligence of the company. ”

“ True, the jury was not told in so many words that, where countervailing evidence has been put in, the presumption comes to an end, but we think this is the fair purport of the language of the court to the effect that appellants may rebut the presumption by their evidence, and that then all the evidence must be considered in determining the question of proximate cause. Certainly, the charge contains no affirmative words directing the jury in that event to consider the presumption as evidence to be weighed with other evidence in the case. ”

“ The attack upon the statute as contravening the due process clause is based upon the contention, shortly stated, that the state Supreme Court, by affirming the judgment, in effect construed the statute to mean that failure to give the prescribed signals is negligence per se and raises a presumption that such failure is the proximate cause of the collision and warrants recovery by the plaintiff without further proof, and that such presumption does not vanish from the case upon the introduction of evidence by the railroad company, but remains throughout to be considered by the jury as evidence. ”