
82 Mich. App. 225 (1978)
266 N.W.2d 766
BAUMANN
v.
POTTS
Docket No. 30006.
Michigan Court of Appeals.
Decided April 3, 1978.
Moore, Barr & Kerwin, for plaintiffs.
*228 Smith & Brooker, P.C., for defendant.
Before: D.E. HOLBROOK, JR., P.J., and ALLEN and D.R. FREEMAN,[*] JJ.
D.E. HOLBROOK, JR., P.J.
This rear-end collision case resulted in a jury verdict of no cause of action. During the course of trial plaintiffs moved for a directed verdict, which motion was denied. Subsequent to the jury verdict plaintiffs moved for a new trial, which motion was also denied, and plaintiffs appeal. The facts necessary to resolve this dispute will be hereafter set forth where necessary and applicable.
On appeal plaintiffs claim first, that the sudden emergency defense should not be extended to excuse violation of the brake equipment statute, MCLA 257.705; MSA 9.2405; second, that, if we do allow the sudden emergency defense to be available in brake failure cases, we should limit same to such situations where the defendant has presented clear and convincing evidence corroborating his claim; and, third, that the verdict of the jury was contrary to the great weight of the evidence. In answering appellant's contentions, although not necessarily seriatim, we find ourselves compelled to turn to three Michigan cases.
In Zeni v Anderson, 397 Mich 117; 243 NW2d 270 (1976), the Supreme Court, speaking through Mr. Justice WILLIAMS, at 129 and 130 stated:
"In a growing number of states, the rule concerning the proper role of a penal statute in a civil action for damages is that violation of the statute which has been found to apply to a particular set of facts establishes only a prima facie case of negligence, a presumption which may be rebutted by a showing on the part of the *229 party violating the statute of an adequate excuse under the facts and circumstances of the case. The excuses may not necessarily be applicable in a criminal action, since, in the absence of legislatively-mandated civil penalties, acceptance of the criminal statute itself as a standard of care in a civil action is purely discretionary. See Comment and Illustrations, 2 Restatement Torts, 2d, § 288A, pp 33-37.
"Michigan cases have in effect followed this rule." (Emphasis supplied.)
At 143 Justice WILLIAMS continued:
"We have seen, therefore, that while some of our Michigan cases seem to present negligence per se as an unqualified rule, the fact of the matter is that there are a number of qualifications which make application of this rule not really a per se approach at all. Not only must the statutory purpose doctrine and the requirement of proximate cause be satisfied, but the alleged wrongdoer has an opportunity to come forward with evidence rebutting the presumption of negligence.
"An accurate statement of our law is that when a court adopts a penal statute as the standard of care in an action for negligence, violation of that statute establishes a prima facie case of negligence, with the determination to be made by the finder of fact whether the party accused of violating the statute has established a legally sufficient excuse. If the finder of fact determines such an excuse exists, the appropriate standard of care then becomes that established by the common law. Such excuses shall include, but shall not be limited to, those suggested by the Restatement Torts, 2d, § 228A, and shall be determined by the circumstances of each case." (Emphasis supplied.)
In Szymborski v Slatina, 386 Mich 339; 192 NW2d 213 (1971), which was also a rear-end collision case, plaintiff claimed, among other things, that the trial court erred in its charge to the jury by failing to instruct them that the statutory *230 presumption of negligence arising from a rear-end collision could only be overcome by clear, positive and credible evidence and further by failing to instruct the jury that the defendant had the burden of proof upon the question of "sudden emergency". In resolving these claims of error the Court stated at 340 and 341:
"On the statutory presumption:
"`Where, however, we are dealing with the rear-end presumption, it appears that the standard urged by the plaintiff is pertinent only to the issue of whether the presumption has been rebutted as a matter of law. Petrosky v Dziurman (1962), 367 Mich 539, 547. This standard is one for the judge. If the evidence is less than clear, positive and credible, "the question whether such presumption has been overcome should be settled  on proper instruction of course  in the jury room." Petrosky v Dziurman, supra, 544, 545, citing Garrigan v LaSalle Coca-Cola Bottling Co. (1961), 362 Mich 262. The trial court did not err in refusing to instruct that the jury could find that the presumption was rebutted only upon clear, positive and credible evidence.'
"On sudden emergency:
"`"The doctrine of sudden emergency is a `logical extension of the "reasonably prudent person" rule,' and as such is not an affirmative defense. Baker v Alt (1965), 374 Mich 492, 496. As it was said in Baker, at p 496, the `test to be applied is what that hypothetical, reasonably prudent person would have done under all the circumstances of the accident, whatever they were.'" (Emphasis supplied.) Since the "sudden emergency" rule is not an affirmative defense, it was not incumbent upon the defendant to establish by a preponderance of the evidence that an emergency existed nor was it error for the judge to refuse to so charge.'" (Emphasis supplied.)
In Lucas v Carson, 38 Mich App 552, 557; 196 NW2d 819 (1972), then Judge, now Justice, FITZGERALD, speaking for the Court, in addressing the *231 issue of what evidence is necessary to rebut the presumption of negligence arising from violation of a penal statute wrote as follows:
"The general rule appears to be that evidence required to rebut this presumption as a matter of law should be positive, unequivocal, strong, and credible. Krisher v Duff, 331 Mich 699 (1951); Petrosky v Dziurman, 367 Mich 539 (1962). In the case at bar, defendant driver contended that she was at all times driving in a reasonable and prudent manner.
"Although the issue presented here is a close one, the trial court was correct in its decision that there was sufficient evidence on the issue of reasonable care to present a factual consideration for the jury and to preclude a directed verdict for plaintiff as a matter of law. Although the statutory presumption of negligence was certainly not rebutted by defendants' evidence as a matter of law, the trial court decided that there was sufficient evidence at least to generate a jury question regarding rebutting of the presumption."
The foregoing standard was cited and adopted by the Supreme Court in Zeni v Anderson, supra at 133, 134, 135.
From the above cited cases we conclude that (1) a violation of a penal statute creates a prima facie case of negligence, a presumption which can be rebutted by affording the alleged wrongdoer an opportunity to come forward with evidence showing an adequate or legally sufficient excuse under the facts and circumstances of the case; (2) whether the party accused of violating the statute has established an adequate or legally sufficient excuse is a determination to be made by the finder of fact on proper instruction; (3) the test to be applied by the finder of fact is what a reasonable prudent person would have done under all the circumstances of the accident; (4) the clear, positive *232 and credible test set forth in Szymborski, supra, the positive, unequivocal, strong and credible test adopted by Lucas, supra, and, as previously stated, approved of by the Supreme Court in Zeni v Anderson, supra at 133, 134, 135, and the clear and convincing test urged upon us by the plaintiffs in the instant case apply only to the question of whether the presumption of negligence for violation of a penal statute has been rebutted as a matter of law and do not control the issue of whether the facts in a particular case should be submitted for jury determination; (5) the "sudden emergency" doctrine is not an affirmative defense; and, (6) it is not incumbent upon the defendant to establish by a preponderance of the evidence that an emergency existed and therefore as to such issue defendant does not have the burden of proof.
Plaintiffs' contention that the sudden emergency defense should not be extended to excuse violation of the brake equipment statute is without merit. When the brake equipment statute is read in conjunction with the defective equipment statute, MCLA 257.683; MSA 9.2383, it is apparent that violation of the brake equipment statute constitutes a misdemeanor thereby rendering same a penal statute. As such, a prima facie case of negligence is established subject to rebuttal by the wrongdoer coming forward with evidence showing an adequate or legally sufficient excuse. Zeni v Anderson, supra.
Plaintiffs' second allegation, that if we extend the sudden emergency defense to excuse a violation of the brake equipment statute we should limit same to such situations where the defendant has presented clear and convincing evidence corroborating his claim, is equally without merit. From the above cited cases we have already concluded *233 that the clear, positive and credible test set forth in Szymborski, supra, the positive, unequivocal, strong and credible test adopted by Lucas, supra, and Zeni, supra, and the clear and convincing test urged upon us by plaintiffs, in the instant case, applies only to whether the presumption of negligence for violation of a penal statute has been rebutted as a matter of law and does not control the issue of whether the facts in a particular case should be submitted for jury determination. If the evidence is less than clear, positive and credible the question of whether the presumption has been overcome should be settled on proper instruction  in the jury room. Szymborski, supra, and Lucas, supra. There the question to be decided is whether the alleged wrongdoer has come forward with evidence showing an adequate or legally sufficient excuse under the facts and circumstances of the case with the test to be applied, by the finder of fact, to be what a reasonable, prudent person would have done under all the circumstances of the accident. Zeni, supra, and Szymborski, supra.
With respect to plaintiffs' final assertion of error, that the verdict of the jury was contrary to the great weight of the evidence, we turn to the above cited authority together with the facts as testified to by the defendant and investigating officer.
During the month of June of 1971 defendant was operating his 1965 Ford Galaxie in the City of Saginaw on the Holland Street Bridge at a speed of 20 to 25 miles per hour. As he reached the crest of the bridge and commenced his descent he noticed flashing lights which indicated that a train was approaching. He also noticed traffic stopped for the train. Knowing he would have to stop he applied his foot to the brake pedal. The pedal went *234 straight to the floor. To avoid an accident defendant testified that he turned off his engine and attempted to apply his parking brake but to no avail. As a result he rear-ended the plaintiffs' car which was stopped for the train. Defendant further testified he had never previously experienced any difficulty with his brakes and in fact that his brakes had worked three to four blocks earlier when he had experienced no previous brake line leaks or any indication of a soft pedal. He further testified that following the accident there was brake fluid on the highway, which testimony was contradicted by the investigating officer.
The investigating officer testified that he checked the brakes and that they did in fact go straight to the floor. Also he failed to observe any skid marks on the pavement. He further testified that he checked the master cylinder and wheel cylinders and that said systems had no brake fluid so as to enable same to function properly. He also testified that the braking system was not working properly to stop the vehicle.
Considering the foregoing evidence we hold there to have been sufficient evidence to go to the jury on the theory of sudden emergency and that the trial court properly denied plaintiffs' motion for a directed verdict. Certainly the evidence in the instant case is equal to if not stronger than the testimony of the defendant in Lucas v Carson, supra, where defendant testified she was at all times driving in a reasonable and prudent manner.
As in Lucas the issue presented here is a close one. While the statutory presumption of negligence was certainly not rebutted by defendant's evidence as a matter of law, the trial court correctly decided that there was sufficient evidence at *235 least to generate a jury question regarding rebutting of the presumption of defendant's negligence.
Contrary to the law the trial judge instructed the jury that the defendant had the burden of proof of his claim that he was confronted with a sudden emergency not of his own making and that he was not negligent in the occurence of the accident. In explaining what is meant by "burden of proof" the court instructed the jury that the evidence must satisfy them that the proposition on which a party has the burden of proof has been established by a preponderance of the evidence. By so instructing the jury the trial judge placed on the defendant a higher degree of proof than required by the above cited cases. Hence, while the instruction was error the error inured to the plaintiffs' benefit since the instructions given by the court not only are more than the law requires but are also more stringent than the test plaintiffs seek us to adopt.
Affirmed. Costs to appellee.
ALLEN, J., concurred.
D.R. FREEMAN, J. (concurring).
It is necessary that a defendant raising a sudden emergency doctrine meet the burden of presenting evidence. Although the trial court's instruction on a preponderance of the evidence burden was improper, this Court's holdings should not be read to indicate that no proofs are necessary. Placing the burden of producing evidence on the defendant certainly does not detract from the efficacy of the doctrine. Of course, the burden of persuasion by a preponderance of the evidence does not shift from the plaintiff.
The third conclusion reached by the majority finds the test to apply is a reasonable, prudent *236 person test under "all the circumstances of the accident". The circumstances to be considered should not be restricted solely to the events of the accident. For example, evidence of prior difficulties with brakes (as was adduced in the instant case) may be significant.
NOTES
[*]  Circuit judge, sitting on the Court of Appeals by assignment.
