The opinion
Dissenting Opinion by
Jiidge DiSalle :
I respectfully dissent. Section 301(a) of the Act, 77 P.S. §431, provides that “no compensation shall be paid when the injury or death ... is caused by the em *429 ployee’s violation of law.” In my judgment, the employer Has not established that the violation here, even if present, caused the accident.
There is a presumption that the decedent was acting with due care at the time of the accident. See Pritchard v. Malatesta, 421 Pa. 11 , 218 A.2d 753 (1966). In addition, it is well settled that the mere happening of an accident does not establish negligence nor raise an inference or presumption of negligence. See Engle v. Spino, 425 Pa. 254 , 228 A.2d 745 ; Fegely v. Costello, 417 Pa. 448 , 208 A.2d 243 . Given these propositions, it is my view that the employer has not met his burden of showing that the employe’s operation of the vehicle was the proximate cause of the accident.
The Board found that the referee’s conclusion that decedent was intoxicated was not supported by the evidence. Further, the Board reasoned that such a finding, even if correct, was insufficient to warrant denial of benefits since the causal factor was absent. I would affirm the Board.