
    TRESISE v. ASHDOWN, Admrx. etc.
    Ohio Supreme Court.
    No. 20633.
    Decided March 28, 1928.
    Error to Cuyahoga Appeals.
    Judgment affirmed.
    118. AUTOMOBILES — 829. Negligence.
    Where car is parked without tail light or other warning, rule that other vehicle must he operated at rate of speed which permits driver to stop within range of vision of head lights, does not apply.
    191. BURDEN OP PROOF.
    "Where plaintiff's evidence raises presumption of negligence on his part, he is only required to produce evidence sufficient to counterbalance evidence giving rise to presumption.
    480. EVIDENCE.
    Fact that ‘there is no living eye witness of accident, does not make competent evidence to show care usually exercised by decedent in operation of his motor vehicle.
   MATTHIAS, J._

1. In an' action to recover damages for injuries claimed to have been sustained by the driver, of a motor vehicle resulting from a collision with another motor vehicle parked at the right side of the highway* at night with no light in the rear or other warning thereof, an instruction to the jury that operation of such motor vehicle at a rate of speed that the driver cannot stop within the distance that an obstruction in the highway could be seen by his own headlights, constitutes negligence per se, is erroneous.

2. An instruction in such a case that if the proof adduced in behalf of the plaintiff is of such character as to raise a presumption of negligence upon his part the burden rests upon the plaintiff to remove such presumption by a preponderance of the evidence, places an unwarranted burden upon the plaintiff and constitutes prejudicial error. He is only required to produce evidence sufficient to counterbalance the evidence giving rise to the presumption; it need not overbalance or outweigh it.

3. The fact that there is no living eye witness of such accident does not make competent evidence tendered on behalf of the plaintiff tending to show the care usually exercised by the decedent in the operation of his motor vehicle.

. (Marshall, CJ., Day, Allen, Kinkade, Robinson and Jones, JJ. concur.)  