The fact that Wilkins' testimony was contradicted in part by another witness does not strengthen appellant's contention. In re Boyer's Estate, 281 Mich. 618, 275 N.W. 652, was a personal injury collision case in which there was a jury verdict in favor of the estate of a deceased defendant. It was held reversible error to exclude, as a matter equally within the knowledge of the deceased, testimony of the plaintiff as to which side of the highway he was traveling upon when injured.

The point came to initial full treatment in Noonan v. Volek, 246 Mich. 377, 381, 382, a typical suit for negligence. The Court said that the statutory bar, in its application to tort cases, "is fraught with difficulty in determining what knowledge the deceased had of a particular event, for the bar is not up until it affirmatively appears that the fact, if true, was known to the deceased." Noonan was followed and applied in the cases of Hanna v. McClave, 271 Mich. 133, 140; In re Boyer's Estate, 281 Mich. 618, 620; Kalbfleisch v. Perkins, 282 Mich. 27, 29; Benaway v. Pere Marquette R. Co., 296 Mich. 1, 5, and, while it is not too easy to reconcile some of them with Case v. Klute, 283 Mich. 581, 584, 585; Quick v. Western Michigan Transportation Co., 294 Mich. 402, 407, 408; Davis v. Jermstad, 350 Mich. 439, 442; and Gabrish v. Morse, 361 Mich. 39, 41, 42, two dependable conclusions stand forth. They are that knowledge of the decedent cannot be "inferred" ( Noonan at 382; Hanna at 140; Lapachin v. Standard Oil Co., 268 Mich. 477), and that the objector carries the burden "of showing that the fact, if true, was equally within the knowledge of the deceased."

It is defendant's claim that plaintiff has the affirmative burden of proving that decedent's direction of travel was equally within her own knowledge before the statute, supra, could be invoked to bar defendant's testimony relating thereto. Defendant relies upon Noonan v. Volek, 246 Mich. 377; Tomczyk v. Detroit, Grand Haven Milwaukee R. Co., 267 Mich. 474; Hanna v. McClave, 271 Mich. 133; and In re Boyer's Estate, 281 Mich. 618. The first 3 cases cited involved acts of the opposite party or of a third party alleged to be equally within the deceased's knowledge, and in each case this Court properly required an affirmative showing that the deceased did, in fact, have such knowledge before the statutory bar could be invoked. In re Boyer's Estate, supra, however, involved the position of decedent driver's automobile as it was driven by decedent around a curve in the dead of night.

But defendant contends that it does not affirmatively appear that the matters with regard to which defendant's driver was asked to testify were equally within the knowledge of the deceased. See In re Boyer's Estate, 281 Mich. 618. Plaintiff's decedent, according to the witness, was looking directly at the oncoming car and its driver up to the instant of the collision. To say that it does not affirmatively appear that the matters with regard to the accident were equally within the knowledge of the decedent would be to hold that, although the deceased was in the exercise of his faculties of sight, it must be further proved that what he saw was within his knowledge.

But plaintiff's counsel contend that where it does not affirmatively appear that the facts testified to were equally within the knowledge of the deceased, the evidence must be submitted to the jury with instructions to disregard such testimony if they find that it actually was within the knowledge of the deceased; and they claim that the trial court was in error in not instructing the jury to this effect. In re Boyer's Estate, 281 Mich. 618. The trial court in its opinion denying a motion for a new trial, stated that there was nothing upon which the jury could have based a finding that the matter testified to was equally within the knowledge of the deceased; and that in any event, the failure of counsel to request such an instruction, either at the time the court admitted the testimony or previous to the court's charge to the jury, precluded them from raising the question on a motion for new trial.

Rankin v. Morgan, 193 Ark. 751, 102 S.W.2d 552. De Pagter v. Boyer's Estate, 281 Mich. 618, 275 N.W. 652 (no transaction unless substance of testimony is within knowledge of decedent driver); Christofiel v. Johnson, 40 Tenn. App. 197, 290 S.W.2d 215. Krantz v. Krantz, 211 Wis. 249, 248 N.W. 155.