Nopson v. City of Seattle

I find myself in disagreement with the majority on two questions: (A) When does the rule of res ipsa loquitur apply? and (B) What is its effect when it is applied?

(A) When does the rule of res ipsa loquitur apply?

The majority quotes the following from Firebaugh v. SeattleElectric Co., 40 Wash. 658, 661, 82 P. 995, 111 Am. St. 990, 2 L.R.A. (N.S.) 836:

"It is insisted by the appellant that it is manifest that this court has not intended to announce the rule that there is a presumption of negligence unless it is apparent that theaccident could not have happened without negligence on the partof the carrier. This is no doubt true, for the rule of res ipsaloquitur is based upon the apparent fact that the accidentcould not have happened without negligence on the part of the carrier; or, upon the literal meaning of the expression, that the thing itself speaks, and shows prima facie that the carrier was negligent." (Italics by the majority.)

And it then says:

"We are of the opinion that what we belive is the basic rule announced by Judge Dunbar, the writer of the opinion, in theFirebaugh case, supra, namely, that the doctrine of res ipsaloquitur is based on the apparent fact that the accident could not have happened without negligence on the part of the carrier, has never been receded from by the court. While different language may have been used in some of the decisions, it is our opinion the rule as above announced is still the rule in this state."

I grant that we have frequently used the language which the majority approves, and we have said that the happening relied upon to make the res ipsa loquitur doctrine applicable must "be of such a character as, in the light of ordinary experience, is inexplicable except as the result of negligence." De Yoe v.Seattle Electric Co., 53 Wash. 588, 594, 102 P. 446, 104 P. 647, 1133. This rule, now so explicitly adopted by the majority, renders the doctrine of res ipsa loquitur of no practical value to a plaintiff, is contrary to the great weight of authority, and is inconsistent with our own decisions where the doctrine has been applied.

I say "of no practical value to a plaintiff" because, if he must remove every possibility except negligence, he does not need the doctrine of res ipsa loquitur, as he has proved negligence. The majority is applying the criminal law rule relative to circumstantial evidence, i.e., that it must be inconsistent with any hypothesis of innocence (or nonnegligence in this type of case).

This court has said that a plaintiff does not have to exclude every possible cause of a happening for which a defendant would not be liable, and that he is not required to prove negligence beyond a reasonable doubt. Lang v. Puget Sound Nav. Co.,189 Wash. 353, 65 P.2d 1069. By the great weight of authority, the happening relied upon to invoke the doctrine of res ipsaloquitur need be neither inexplicable nor incapable of explanation except on the basis of negligence, and it is sufficient if the happening supports a permissible inference of negligence. The following is a much quoted statement by the supreme court of the United States on this point:

"In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff." Sweeney v. Erving, 228 U.S. 233, 240, 57 L. Ed. 815,33 S. Ct. 416, Ann. Cas. 1914D, 905.

This court has twice quoted the foregoing excerpt from theSweeney case (Singer v. Metz Co., 107 Wash. 562, 567,182 P. 614, 186 P. 327; Genero v. Ewing, 176 Wash. 78, 82,28 P.2d 116), and has cited the case with approval on three other occasions (Briglio v. Holt Jeffery, 85 Wash. 155, 159,147 P. 877; Kolbe v. Public Market Delivery Transfer, 130 Wash. 302,305, 226 P. 1021; Pacific Coast R. Co. v. American MailLine, 25 Wash. 2d 809, 818, 172 P.2d 226).

The reason for this more liberal rule as to the application of the doctrine of res ipsa loquitur is well stated in GeorgeFoltis, Inc. v. New York City, 287 N.Y. 108, 115,38 N.E.2d 455, 153 A.L.R. 1122, quoting from Galbraith v.Busch, 267 N.Y. 230, 234, 196 N.E. 36:

"`The doctrine of res ipsa loquitur is not an arbitrary rule. It is rather a common-sense appraisal of the probative value of circumstantial evidence. It requires evidence which shows at least probability that a particular accident could not have occurred without legal wrong by the defendant. To negative every possibility that the accident occurred in some extraordinary manner which would exculpate the defendant is often impossible. In the administration of the law we must be satisfied with proof which leads to a conclusion with probable certainty where absolute logical certainty is impossible.'"

It is generally recognized in res ipsa loquitur cases that a permissible inference of negligence makes a prima facie case. In McCoy v. Courtney, 25 Wash. 2d 956, 962, 172 P.2d 596, 170 A.L.R. 603, we defined a prima facie case as one

". . . where the evidence is sufficient to justify, but not to compel, an inference of liability, or, in other words, evidence to be weighed, but not necessarily to be accepted, by a jury or other trier of the fact. Vance v. Guy, 224 N.C. 607,31 S.E.2d 766."

The general rule is that, while the doctrine of res ipsaloquitur will get a plaintiff past a nonsuit, it does not compel a directed verdict in his favor if the defendant elects to introduce no evidence, because, as stated in McCoy v. Courtney,supra, there is "evidence to be weighed, but not necessarily to be accepted." Under the Washington rule as the majority now announces it, there must of necessity be a directed verdict for the plaintiff in any res ipsa loquitur case if the defendant introduces no evidence, because, if the doctrine is applied only where the happening is incapable of explanation except on the basis of negligence, the defendant must of course, in the absence of exculpatory evidence, be held to have been negligent.

We have ourselves applied the liberal rule in numerous cases.

In Mahlum v. Seattle School Dist. No. 1, 21 Wash. 2d 89, 97,149 P.2d 918, we said:

"We are also of the opinion that the evidence was sufficient to permit submission of the case to the jury on the theory of resipsa loquitur. The rationale of that doctrine is that, when the thing which causes the injury is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of events does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care. Poth v. Dexter Horton Estate,140 Wash. 272, 248 P. 374; Highland v. Wilsonian Inv. Co.,171 Wash. 34, 17 P.2d 631.

"The pressure cooker was under the management of the appellant. Explosions of such instrumentalities do not, in the ordinary course of things, occur if those in charge of them use reasonable care, for, otherwise, it is quite unlikely that such devices would long be upon the market or in popular use. In this instance, the explosion did occur. The occurrence therefore afforded reasonable evidence, in the absence of explanation by the appellant, that the accident arose from want of care."

In Hardman v. Younkers, 15 Wash. 2d 483, 489,131 P.2d 177, 151 A.L.R. 868, we said:

"Ordinarily, the mere fact that an automobile accident has occurred is not of itself proof of negligence on the part of the driver. However, under the doctrine of res ipsaloquitur, when an accident or injury is such as in the ordinary course of events does not happen if the person in charge of the motor vehicle uses proper care, proof of the occurrence of an injury and the circumstances surrounding it may, in the absence of contrary evidence, give rise to an inference of negligence on the part of the driver of the offending vehicle and thus make out a prima facie case of negligence against such driver, placing upon him the burden of explaining the accident and showing that it did not occur through want of care on his part."

In Highland v. Wilsonian Inv. Co., 171 Wash. 34, 38,17 P.2d 631, we approved the rule that:

"`When a thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from a want of care.' 1 Shearman Redfield on Negligence (6th ed.), § 59."

In Wodnik v. Luna Park Amusement Co., 69 Wash. 638, 641,125 P. 941, 42 L.R.A. (N.S.) 1070, we used exactly the same quotation from Shearman Redfield that we quoted in theHighland case, supra; and we also quoted the following fromGraaf v. Vulcan Iron Works, 59 Wash. 325, 328, 109 P. 1016:

"The doctrine of res ipsa loquitur means that the jury, from their experience and observation as men, are warranted in finding that an accident of this kind does not ordinarily happen except in consequence of negligence. As was said in Griffin v. Boston Albany R. Co., 148 Mass. 143, 19 N.E. 166, 12 Am. St. 526, 1 L.R.A. 698:

"`All that the plaintiff upon this branch of his case was required to do was to make it appear to be more probable that the injury came in whole or in part from the defendant's negligence than from any other cause.'"

In Anderson v. McCarthy Dry Goods Co., 49 Wash. 398, 401,95 P. 325, 126 Am. St. 870, 16 L.R.A. (N.S.) 931, which was an action to recover damages caused by the falling of a basket from an overhead carrier system in defendant's store, we said:

"When a plaintiff proves the existence of this carrier system and the falling of the basket therefrom, causing damage, we think facts are shown from which a reasonable mind might properly infer that the apparatus was improperly constructed or out of repair. Hence, a case for the jury is thus established."

The plaintiffs recovered in all of the Washington cases from which I have just quoted, and yet, if we had applied the rule now adopted by the majority, the principle of res ipsa loquitur would not have been applicable, because there were apparent explanations apart from negligence, as there is when a car stops with an extraordinarily violent jerk or jolt. In the Mahlum case, for example, a pressure cooker used in a school lunchroom exploded. The explosion could have been due to fault or fatigue in the metal not visible or apparent, for which there would have been no liability. We nevertheless properly applied the doctrine of res ipsa loquitur.

The quotation from Morner v. Union Pac. R. Co., 31 Wash. 2d 282, 196 P.2d 744, appearing in the majority opinion on page 784, states the correct rule and is inconsistent with the rule which the majority announces in this case.

It is, however, when we consider the carrier cases (and this is such a case) that the majority's departure from the generally recognized concept of res ipsa loquitur becomes most apparent. In Firebaugh v. Seattle Electric Co., supra, the very case from which the majority quotes the rule it says is applicable here, it is explicitly stated that that rule does not apply to carrier cases.

An analysis of the Firebaugh case will show that the language quoted by the majority is not the principle applied in the determination of that case. The court's holding in that case is well stated in the first headnote:

"Where an accident to a passenger on a street car is due to an explosion or blow-out of the controller, a presumption of negligence on the part of the carrier arises, since the doctrine of res ipsa loquitur applies where the accident is due to equipment or operation over which the carrier had entire control."

The cause of the explosion or blowout in the Firebaugh case could not be definitely established, and several causes were suggested. It was held that the doctrine of res ipsa loquitur applied and that there was a presumption of negligence from the happening.

Preceding the Firebaugh case and, in fact, beginning withHawkins v. Front Street Cable R. Co., 3 Wash. 592,28 P. 1021, 28 Am. St. 72, 16 L.R.A. 808, decided in 1892, we have, in carrier cases, pretty consistently followed the rule laid down inMeier v. Pennsylvania R. Co., 64 Pa. St. 225, 3 Am. Rep. 581, that the doctrine of res ipsa loquitur applies when injury to a passenger could have been caused (1) by a defect in its road, cars, or machinery, or (2) by a want of diligence or care by its employees, or (3) by any other thing which the carrier could or ought to control as part of its duty to carry its passengers safely. (A new trial was awarded in the Hawkins case because the jury had been instructed that, when a passenger is injured without fault of his own, there is a legal presumption of negligence on the part of the carrier, which instruction was much too broad.)

In Williams v. Spokane Falls Northern R. Co., 39 Wash. 77,82, 80 P. 1100, the Hawkins case was distinguished, the court saying:

"There, it will be observed, the instruction overruled had no limitations whatever, and, under that instruction, if the passenger had been injured by some unavoidable accident disconnected entirely from the railroad company, such as an injury resulting from the discharge of a firearm by some one in the car, or through the window by some one outside of the car, the company would have been held responsible. So that it is not enough that the passenger is injured without fault of his own, but the injury must be connected in some way with the operation of the road; and, when the injury is so connected, we think, under the overwhelming weight of authority, that a prima facie case of negligence is made out by the plaintiff, and that the duty devolves upon the company to establish a want of negligence on its part. And the cases cited by this court in that case show that such was the view that the court took of the law."

The court then said that Mr. Thompson, in his Commentaries on the Law of Negligence, "very happily expresses the distinction which we have sought to make," and quoted § 2754 of that text, a portion of which we also quote:

"`In every action by a passenger against a carrier to recover damages predicated upon the negligence or misconduct of the latter, the burden of proof, in the first instance, is, of course, upon the plaintiff to connect the defendant in some way with the injury for which he claims damages. But when the plaintiff has sustained and discharged this burden of proof by showing that the injury arose in consequence of the failure, in some respect or other, of the carrier's means of transportation, or the conduct of the carrier's servants, then, in conformity with the maxim res ipsa loquitur, a presumption arises of negligence on the part of the carrier or his servants, which, unless rebutted by him to the satisfaction of the jury, will authorize a verdict and judgment against him for the resulting damages.'"

The court pointed out that the presumption arises, not from the happening of an accident, but from a consideration of the cause of the accident, and to make that clear quoted part of § 2756 from the same text:

"`It has been pointed out by an able judge that the presumption which arises in these cases does not arise from the mere fact of the injury, but from a consideration of the cause of theinjury. Thus, it was said by Ruggles, J.: "A passenger's leg is broken while on his passage in the railroad car. This mere fact is no evidence of negligence on the part of the carrier, until something further be shown. If the witness who swears to the injury testifies also that it was caused by a crash in a collision with another train of cars belonging to the same carriers, the presumption of negligence immediately arises, — not, however, from the fact that the leg was broken, but from the circumstances attending the fact."'"

In Hayes v. Staples, 129 Wash. 436, 438, 225 P. 417, we said:

"The rule is general that a plaintiff makes out a prima facie case of negligence against a common carrier when he shows that he was injured while riding for hire and in the usual manner on a conveyance furnished by the carrier, and that the injury was caused by some defect in or management of the conveyance over which the carrier had exclusive control. It is not necessary to go beyond our own decisions to find authority for the rule. In a long line of cases we have so held.Williams v. Spokane Falls N.R. Co., 39 Wash. 77,80 P. 1100; Firebaugh v. Seattle Elec. Co., 40 Wash. 658,82 P. 995, 111 Am. St. 990, 2 L.R.A. (N.S.) 836; Jordan v. Seattle,Renton etc. R. Co., 47 Wash. 503, 92 P. 284; Russell v.Seattle, Renton etc. R. Co., 47 Wash. 500, 92 P. 288; Harrisv. Puget Sound Elec. R., 52 Wash. 289, 100 P. 838; Topping v.Great Northern R. Co., 81 Wash. 166, 142 P. 425, L.R.A. 1915F 1174, 7 N.C.C.A. 507.

"The presumption of negligence arising from such proofs is not, of course, conclusive. It is open to the carrier to show that the accident was not the result of negligence, and he is always entitled to have the verdict of the trier of fact on the question when he makes such a showing."

In Cassels v. Seattle, 195 Wash. 433, 438, 81 P.2d 275, we laid down the oft-repeated rule:

"To support a claim for damages occasioned by jerks and jolts on a street car, there must be evidence that the facts and circumstances surrounding the injury show negligence. Wile v.Northern Pac. R. Co., 72 Wash. 82, 129 P. 889; Annotations, 29 L.R.A. (N.S.) 814. It is, however, actionable negligence to cause a street car to give a violent or unusual jolt causing injury to a passenger. Laible v. Wells, 317 Mo. 141, 296 S.W. 428; Balesv. Kansas City Public Service Co., 328 Mo. 171,40 S.W.2d 665."

While the court did not there take the time to spell it out, it is apparent that the reason a violent or unusual jolt is actionable negligence, is that there is an inference of negligence from the happening itself. The jolt may have been necessary to prevent running over a child, and no one would contend that it could not have happened without negligence; yet the happening raises a permissible inference of negligence which will take such a case to the jury.

In Wiggins v. North Coast Transp. Co., 2 Wash. 2d 446, 453,98 P.2d 675, we said:

"The ordinary jolts and jerks of the bus in starting or stopping are among the usual incidents of travel; and for injuries resulting from them, the carrier is not liable. The sudden stopping of the vehicle is not of itself evidence of negligence, but the vehicle may be stopped so suddenly as to furnish evidence of negligence.

"`In general, no fixed rule can be laid down as to what constitutes such a sudden or abrupt stopping of a bus as to give rise to an inference of negligence; each case being determinable upon the particular facts shown and presenting a question of fact.' 4 Blashfield, Cyc. of Automobile Law, 17, § 2156."

At the risk of being unduly repetitious, I again point out that a sudden stop may be necessary to save a life, yet from the fact of that sudden stop there rises an inference of negligence such as Blashfield refers to in the foregoing quotation and which we specifically recognize.

In Keller v. Seattle, 200 Wash. 573, 94 P.2d 184, the court carefully analyzed the testimony and came to the conclusion that the evidence was sufficient to take to the jury the question of whether the jerk causing the accident was so much out of the ordinary that, unexplained, it raised the inference that the operator of the streetcar was guilty of negligence. The case was sent back for a retrial because of a clearly erroneous instruction which told the jury that, if the plaintiff was a passenger and was injured by virtue of the manner in which the car was operated, there was a presumption of negligence; whereas, as we have seen in the jolt, jerk, and stop cases, there is no such presumption or inference from ordinary jerks, jolts, or stops.

In the case now before the court, the majority says that there was sufficient evidence

". . . to take the case to the jury on the theory that the operator of the bus was guilty of negligence in making this stop in the manner and place he did, there not appearing to have been any necessity for making an emergency stop. . . ."

Note this very significant language immediately following the foregoing quotation from the majority opinion:

"However, when the city introduced proof to the effect that it became necessary to make the sudden stop because of the fact that a car had cut across directly in front of the bus, the case should have been submitted to the jury on the issue raised by the evidence of appellant and that presented by respondent." (Italics by the majority.)

Why did the city need to introduce proof of necessity to make the sudden stop? Obviously, as the majority says:

". . . on the theory that the operator of the bus was guilty of negligence in making this stop in the manner and place he did. .. ."

The passenger did not have to show that there was no cause for the sudden stop; the responsibility for explanation or excuse was on the city. What the majority refers to as a "theory" was in fact the application of the doctrine of res ipsa loquitur.

I can see only one explanation of our holding in the Keller case and in this case, that the evidence of the extraordinary character of the jolt, jerk, or stop was sufficient to take the cases to the jury, and our insistence that they are not res ipsaloquitur cases; and that explanation is that this court recognizes a distinction between the inference of negligence which arises from an unusual and extraordinary jolt, jerk, or stop and the doctrine of res ipsa loquitur. In my opinion, such a distinction amounts to no more than an allergy to the phrase"res ipsa loquitur."

If it is our purpose to recognize a permissible inference of negligence in such cases, but to say that res ipsa loquitur applies only where the jolt, jerk, or sudden stop could not have happened without negligence, then appellant's grievous error was to mislabel instruction No. 8 as a res ipsa loquitur instruction; whereas, in truth and fact, the first paragraph of the instruction simply presented to the jury the question of whether the stopping of the bus was of such a character as to raise an inference of negligence, and I quote it:

"IF YOU FIND from the evidence that the fact that the manner of the stopping of the bus was of such a nature as would not, in the ordinary course of events, happen if those who had the control, supervision and operation thereof had used proper and reasonable care, then I instruct you that you may infer from the fact that such a stop was made was due to the negligence of the defendant, and a prima facie case is thereby established in favor of the plaintiff."

Since this paragraph of the instruction deals only with the inference of negligence which may arise from the stopping of a bus in such a manner

". . . as would not, in the ordinary course of events, happen if those who had the control, supervision and operation thereof had used proper and reasonable care . . .,"

it is entirely consistent with our holdings in the Wiggins andKeller cases and the present case. Therefore, the vice which made the giving of this instruction erroneous must be in the second paragraph thereof, which reads as follows:

"The burden then devolves upon the defendant to furnish an explanation or rebuttal of such prima facie case by producing evidence of due care and precaution under the circumstances and conditions necessarily within defendant's exclusive control. If, then, after considering such explanations of the whole case, and of all the issues as to negligence, injury and damages, the evidence still preponderates in favor of the plaintiff, then plaintiff is entitled to recover; otherwise not."

We now turn our attention to a consideration of the effect of raising an inference of negligence.

(B) What is the effect of the doctrine of res ipsa loquitur when it is applicable? Or, as the majority would apparently prefer to state the question: What is the effect of the inference of negligence from the extraordinary jolt, jerk, or stop which establishes a prima facie case in a carrier case?

It may be that the majority would agree, if this were a resipsa loquitur case, that the second paragraph of instruction No. 8, which I have just quoted, was a proper instruction. However, I have not established my position that it was a proper instruction until I show that the second paragraph correctly states the law in a res ipsa loquitur case; and I do not know just what interpretation to place upon the following paragraph, in which the majority states its conclusion:

"We are of the opinion that, in the instant case, the demands of justice do not require, nor do the circumstances surrounding this stop justify, an instruction on the doctrine of res ipsaloquitur. In other words, we are of the opinion that the evidence introduced by appellant does not show that the accident was of such a character that it could not havehappened without negligence on the part of the operator of thebus. We are of the opinion, however, that there was sufficientevidence introduced on the part of appellant to take the case to the jury on the theory that the operator of the bus was guilty of negligence in making this stop in the manner and place he did, there not appearing to have been any necessity for making an emergency stop. However, when the city introduced proof to the effect that it became necessary to make the sudden stop because of the fact that a car had cut across directly in front of the bus, the case should have been submitted to the jury on the issue raised by the evidence of appellant and that presented by respondent." (Italics by the majority.)

There are certain possibilities. (1) If the second "evidence" in the foregoing statement refers to the evidence on the issue of whether a car cut in front of the bus, the statement is erroneous (or so I believe). (2) If it refers to all the evidence in the case, but with the intent to exclude thereby from the consideration of the jury, the inference of negligence arising from the sudden stop ("the theory that the operator of the bus was guilty of negligence in making this stop in the manner and place he did"), the statement is erroneous (or so I believe). (3) If it refers to all the evidence and does not exclude the permissible inference of negligence arising from the sudden stop, then the statement is correct; but, in that event, the majority concedes that this is a res ipsa loquitur case, unless, as I have previously pointed out, it makes a distinction between the inference of negligence which arises from an unusual jolt, jerk, or stop, and the doctrine of res ipsa loquitur.

Proceeding on the theory that the majority means either (1) or (2), supra, we must now give consideration to the effect of the application of the doctrine of res ipsa loquitur.

If the doctrine of res ipsa loquitur results in a true presumption, or a presumption of law, the carrier, being presumptively negligent, is liable (assuming there was no contributory negligence), and an instructed verdict for the plaintiff is in order unless the carrier introduces exculpatory evidence. However, if the carrier does introduce credible evidence to establish that it was not negligent, the presumption disappears from the case, for, as has been said:

"A presumption is not evidence of anything, and only relates to a rule of law as to which party shall go forward and produce evidence sustaining a matter in issue. A presumption will serve as and in the place of evidence in favor of one party or the other until prima facie evidence has been adduced by the opposite party; but the presumption should never be placed in the scale to be weighed as evidence. The presumption, when the opposite party has produced prima facie evidence, has spent its force and served its purpose, and the party then, in whose favor the presumption operated, must meet his opponent's prima facie evidence with evidence, and not presumptions. A presumption is not evidence of a fact, but purely a conclusion. Elliott, Ev. §§ 91, 92, 93; Wigmore, Ev. §§ 2490, 2491." Peters v. Lohr, 24 S.D. 605,609, 124 N.W. 853.

The foregoing statement has been quoted in whole or in part at least eight times in this state between Scarpelli v. WashingtonWater Power Co., 63 Wash. 18, 114 P. 870, and Kay v.Occidental Life Ins. Co., 28 Wash. 2d 300, 183 P.2d 181. And I again take space in our reports to repeat what we have said so many times, because at this point it helps to clarify the distinction between the effect of a presumption of law and the effect of a permissible inference, or presumption of fact.

It is the respondent's position in this case, and apparently that of the majority, that, when the city introduced its exculpatory evidence, the inference of negligence disappeared from the case. If, however, the doctrine of res ipsa loquitur results in a permissible inference of negligence, the great weight of authority is that the failure of the carrier to introduce any exculpatory evidence means that the inference of negligence carries the case to the jury. The jury may or may not conclude that there was negligence, but there can be no directed verdict for the plaintiff, except in very exceptional cases hereinafter referred to. If the defendant does introduce evidence to establish that it was not negligent, the permissible inference continues in the case for what it may be worth, except again in very exceptional cases hereinafter referred to. We again call attention to the language of the supreme court of the United States in Sweeney v.Erving, 228 U.S. 233, 240, 57 L. Ed. 815, 33 S. Ct. 416, Ann. Cas. 1914D, 905, which we have expressly adopted:

"In our opinion, res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff."

See Singer v. Metz Co., 107 Wash. 562, 182 P. 614, 186 P. 327.

It is sometimes difficult to tell which of the two theories has been adopted by a given state. The following statement concerning the situation in the state of New York, taken from GeorgeFoltis, Inc., v. New York City, 287 N.Y. 108, 121,38 N.E.2d 455, 153 A.L.R. 1122, is applicable to many other jurisdictions:

"A study of the opinions of the appellate courts of this state reveals that judges have used the terms `inference' and `presumption' indiscriminately and without recognition that an `inference' and a `presumption' are not identical in scope or effect. Judicial failure to note the distinction has led to confusion of thought and often to inconsistencies in judicial opinions and decisions. [Citing cases.] It is perhaps impossible for trial judges to deduce from the opinions or decisions of the appellate court the procedure they should follow when under the rule of res ipsa loquitur the plaintiff has established primafacie that injury was due to the negligence of the defendant and the defendant introduces no evidence in rebuttal. (See Rosenthal, `Procedural Effect of Res Ipsa Loquitur,' 22 Cornell Law Quarterly [1936], p. 39.) . . . The time has come to attempt authoritative formulation of the procedural rule, confused in this state as in other jurisdictions by earlier failure to appreciate fully the implications latent in the rule of res ipsaloquitur."

It has long been Professor Wigmore's thesis that a presumption of fact is not a presumption at all, but an inference. He says:

"There is in truth but one kind of presumption; and the term `presumption of fact' should be discarded as useless and confusing." 9 Wigmore on Evidence (3d ed.) 289, § 2491.

After a careful consideration of the arguments of Professors Thayer and Wigmore on this subject, and of their numerous critics, particularly Professor Morgan and Mark Shain, and of the cases discussed in the annotations in 53 A.L.R. 1494 and 167 A.L.R. 658, it seems to me that the term "permissible inference of negligence" is preferable, as eliminating confusion. In support of that position I quote two very persuasive opinions, the first by Chief Justice Marshall of the supreme court of Ohio, in Glowacki v. North Western Ohio R. Power Co., 116 Ohio 451,458, 157 N.E. 21, 53 A.L.R. 1486:

"The doctrine of res ipsa loquitur involves a rule of considerable difficulty, and has become involved in much contradiction in the courts of various jurisdictions, and the former decisions of this court are not entirely free from contradiction. The difficulty has arisen in part in a confusion of terms and a failure to draw the proper distinction between presumptions and inferences. It will be found that the more carefully considered opinions of this and other courts have avoided treating the rule as a presumption. The distinction between an inference and a presumption is well stated by Judge Wilkin in Ensel v. Lumber Ins. Co., 88 Ohio St., 269,102 N.E., 955, at page 282 of the opinion, (102 N.E., 959) which we quote:

"`The error of counsel throughout this case, lies in a confusion of terms. They mistake inference for presumption — a slip too often unconsciously made by judges as well as lawyers. A presumption is a rule which the law makes upon a given state of facts; an inference is a conclusion which, by means of data founded upon common experience, natural reason draws from facts which are proven.'"

The other is from Johnson v. Stevens Bldg. Catering Co., 323 Ill. App.? 212, 218, 55 N.E.2d 550:

"While it has been said in some Illinois cases that the presumption of negligence raised by the application of the doctrine of res ipsa loquitur is not absolute or conclusive but is rebuttable and vanishes entirely when any evidence appears to the contrary, it seems to us that where the doctrine is applicable the use of the term `presumption of negligence' is an inapt and unfortunate characterization of the prima facie case made out by the fact of the injury itself and the circumstances attending it. Of course such a prima facie case is neither absolute nor conclusive but to say that it `vanishes entirely when any evidence appears to the contrary' is equivalent to holding that, regardless of how flimsy the explanation offered by a defendant may be as to its exercise of due care in connection with the instrumentality that caused the injury and regardless of the incredibility and improbability of the explanation, such explanation must be accepted as true. If that were the correct rule a plaintiff could never recover under the principle of resipsa loquitur, if a defendant offered any evidence by way of explanation of due care on his part, no matter how incredible and improbable such evidence might be. A prima facie case cannot vanish but must be submitted to the jury together with the evidence presented by the defendant. It is the province of the jury to determine as a question of fact whether the evidence introduced by a defendant in explanation of the occurrence is consistent with due care on his part and to also determine the credibility and probability of such evidence."

We have, in this state, used the terms "inference of negligence" and "presumption of negligence" almost interchangeably; but when we have said "presumption of negligence" in res ipsa loquitur cases, it has, in almost every instance, been with a recognition that we were referring to a presumption of fact and not a presumption of law, and that a presumption of fact does not disappear when credible controverting evidence is introduced.

In Briglio v. Holt Jeffery, 85 Wash. 155, 147 P. 877, the court made clear that the presumption of negligence raised in ares ipsa loquitur case is a presumption of fact, not a presumption of law. It was also there made clear that, as a presumption of fact, it does not cease to exist. The court stated the meaning of the doctrine of res ipsa loquitur in these words:

"But in such a case, what is really meant is simply that the burden of furnishing evidence explaining the apparent negligence, if any explanation is possible, is upon the one to whom it is attributable. The doctrine means that the facts of the occurrence warrant an inference of negligence; not that they compel such an inference. It does not shift the burden of proof, nor does it convert the defendant's general issue into an affirmative defense. When all the evidence is in, it is for the jury to determine whether the preponderance is with the plaintiff."

It then made equally clear its view of the effect of the application of the doctrine:

"The proper instructions as to the application of the presumption would be thus: The jury should be instructed that the burden of proof is upon the plaintiff to establish all the controverted allegations of his complaint by a fair preponderance of the evidence, and defining preponderance of the evidence; that when a situation is shown which necessarily infers negligence on the part of defendant, or res ipsa loquitur, the burden thendevolves upon defendant to furnish an explanation or rebuttal ofthat presumption of negligence, by producing evidence of his duecare and proper precaution, under the circumstances andconditions necessarily within defendant's exclusive control. Ifthen, after considering such explanation, on the whole case andon all the issues as to negligence, injury and damages, theevidence still preponderates in favor of the plaintiff, plaintiffis entitled to recover; otherwise not." (Italics mine.)

The foregoing "proper instructions" in a res ipsa loquitur case are, in my opinion, an excellent statement, if two propositions are kept in mind: (1) that when the term "presumption of negligence" is used, the court is referring to a presumption of fact, which remains in the case, and not a presumption of law, which can disappear from the case (and that "inference of negligence" would be a more accurate expression); and (2) that the words "situation . . . which necessarily infers negligence" do not mean that the situation need be one from which it is necessary (compulsory) to infer negligence (which is the position of the majority in the present case), but that the situation need be one from which negligence necessarily may be inferred (which is my position in the present case). That there may be no question of the meaning of the court when it used the quoted language, I repeat a portion of the first quotation from the case:

". . . The doctrine means that the facts of the occurrence warrant an inference of negligence; not that they compel such an inference. . . ."

These "proper instructions" have been quoted three times and cited many times by this court. They were quoted and approved inGenero v. Ewing, 176 Wash. 78, 82, 28 P.2d 116, and Kolbev. Public Market Delivery Transfer, 130 Wash. 302, 306,226 P. 1021, and, more recently, in Hardman v. Younkers, 15 Wash. 2d 483,493, 131 P.2d 177, in which we also said:

"Although a plaintiff may have made a prima facie case of negligence through the application of the doctrine of res ipsaloquitur, he still has the burden of proof or, as is sometimes expressed, the burden of making the better case, upon that issue when finally submitted to the trier of the fact. In such situations, the only `burden' resting upon the defendant is simply that of going forward with the evidence at the proper time, furnishing an explanation of how the accident happened and showing that it did not occur by reason of lack of due care on his part. When the defendant has done that, the whole case must be submitted to the trier of the fact, whose duty then is to determine whether the plaintiff has established negligence, injury, and damages, by a preponderance of the evidence."

The italicized portion of the instructions quoted above from the Briglio case, deals with the effect of the application of the doctrine of res ipsa loquitur. It is the exact language ofthe second paragraph of instruction No. 8 in the present case,with the exception that, for the words "rebuttal of thatpresumption of negligence," the trial court substituted "rebuttalof such prima facie case." We again quote our definition of aprima facie case:

"A `prima facie case' is one where the evidence is sufficient to justify, but not to compel, an inference of liability, or, in other words, evidence to be weighed, but not necessarily to be accepted, by a jury or other trier of the fact." McCoy v.Courtney, 25 Wash. 2d 956, 962, 172 P.2d 596.

It seems to me incontrovertible that in the present instance the "whole case," including the right to draw an inference of negligence, was properly submitted to the jury under instructions which we have heretofore frequently approved.

The respondent here, upholding the granting of a new trial, has led the trial court and this court into error by blandly assuming that the presumption of negligence (more properly "inference of negligence") arising from the sudden stop, is a presumption of law that is removed by the positive testimony of disinterested witnesses. If we are to use the confusing phrase "presumption of negligence," we should keep in mind that it is a presumption of fact that remains in the case unless the evidence is so conclusive that there was no negligence that reasonable minds cannot disagree and it ceases to be a jury question. (That is almost the present case, but not quite. Respondent says the testimony regarding the presence of a third vehicle which caused the sudden stop, which would negative negligence on the part of the respondent, is "all but conclusive," and the majority says it is "almost conclusive." That it is not conclusive enough is evidenced by the fact that the trial court granted a new trial and this court approves a new trial. If it were really conclusive, a dismissal, not a new trial, should be granted.)

To summarize my position:

When you have a case which warrants the application of the doctrine of res ipsa loquitur, the permissible inference of negligence which must be present should go to the jury for what it may be worth, along with the exculpatory evidence which the defendant presents. The weight of that inference will vary according to the circumstances of each individual case. Generally speaking, it makes a prima facie case, as we have heretofore defined that term, and will get a plaintiff past a nonsuit, but it will not support a directed verdict in his favor. When the defendant puts in exculpatory evidence, it may overcome that inference of negligence, but it does not make it disappear.

To state the proposition a little differently, I quote the words of the supreme court of Oregon in Chaperon v. PortlandElectric Co., 41 Ore. 39, 47, 67 P. 928, where the effect of the defendant's evidence on a plaintiff's prima facie case was considered:

"When the defendant produced its evidence, the case rested; and it became a matter for the jury to determine whether it had succeeded, or whether, notwithstanding its attempt at exoneration, plaintiff's prima facie case was even yet the stronger and more satisfactory."

This court said substantially the same thing in Mahlum v.Seattle School Dist. No. 1, 21 Wash. 2d 89, 149 P.2d 918.

There are two exceptions to what I have stated to be my conception of the effect of the application of the doctrine ofres ipsa loquitur, one at each end of the scale, so to speak:

(1) Where the inference of negligence is so strong that, in the absence of explanation by the defendant, reasonable minds cannot reach any conclusion but that the defendant must have been negligent. A collision by trains or cars of a carrier on tracks under the exclusive control of that carrier would seem to present such a case. It was conceded by the carrier in Russell v.Seattle, Renton Southern R. Co., 47 Wash. 500, 92 P. 288, and Jordan v. Seattle, Renton Southern R. Co., 47 Wash. 503,506, 92 P. 284, that

"`. . . ordinarily when a collision occurs between two of the cars of a railway company the happening of such collision raises a presumption of negligence on the part of the railway company, which it is necessary for it to overcome in order to escape liability for injury sustained in such collision.'"

That is to say, ordinarily the inference of negligence in such a case is so conclusive that reasonable minds cannot differ and, unless the carrier chooses to introduce exculpatory evidence, the plaintiff is entitled to a directed verdict. It is this exception to the general rule that the majority says should represent the situation before the doctrine of res ipsaloquitur can be invoked.

(2) Where the exculpatory evidence of the defendant is uncontradicted and is of such character that reasonable minds can reach no conclusion but that the defendant was not negligent. Under such circumstances, the trial court would be justified in taking that issue from the jury. Scarpelli v. Washington WaterPower Co., 63 Wash. 18, 114 P. 870; Topping v. Great NorthernR. Co., 81 Wash. 166, 142 P. 425, L.R.A. 1915F 1174; Hayes v.Staples, 129 Wash. 436, 225 P. 417. (There is language in the opinion in the Topping case which would indicate that it was decided on the basis that it was not a res ipsa loquitur case; but I believe that, as indicated in Hayes v. Staples, supra, it was a res ipsa loquitur case in which the defendant's evidence was so conclusive that the happening relied upon to furnish an inference of negligence was an act of God, that the trial court was justified in dismissing the case.)

As I have indicated, this is almost a case where the second exception might be invoked. Since the exculpatory evidence is not conclusive, however, the general rules above set out are applicable.

It is, therefore, my view that, if the majority means either of the first two possibilities pointed out in this dissent on page 805, it is wrong in its statement of the applicable rule; if it means the third, it is wrong in its conclusion that this is not ares ipsa loquitur case. Instruction No. 8 was a correct statement of the law, and this is the type of case in which it should be given; and the trial court erred when it granted a new trial "solely for the reason and upon the grounds that an error was committed by the Court in submitting" an instruction on resipsa loquitur.

The majority also holds that the trial court erred in giving instructions Nos. 4 and 6; and I can agree that neither instruction should have been given, and that, since the case is to be tried again, this court should point out why they should not be given on a retrial; but I do not agree that they were sufficiently prejudicial to have warranted a new trial if we had held that the res ipsa loquitur instruction was properly given.

The trial court commenced instruction No. 4 with the words:

"THE LAW REQUIRES that a trolley coach operator must drive at all times with a much greater care for his passengers' safety than must the driver of a private car."

Later in the same instruction, the proper test was given, that the operator must drive with the highest degree of care for the safety of his passengers consistent with the practical operation of a trolley coach. The quoted sentence was argumentative and invited a juror who might be an extremely cautious driver to envision an even higher degree of care on the part of the trolley coach operator. However, I cannot believe that it was prejudicial, in view of the fact that the court three times laid down the test of the trolley coach operator's conduct as being the highest degree of care compatible with practical operation of the coach.

Instruction No. 6 stated that a trolley coach operator is bound to assume, in driving his coach, that he may at any time be confronted with the necessity of making an emergency stop in traffic, and that he is bound to drive at such speed and with such control that, if confronted with an emergency, he can apply his brakes without unreasonable danger to his passengers. This instruction, the majority points out, imposed too strict a duty upon the operator, because it did not make clear that the operator would have the right to assume, until he knew or should have known to the contrary, that the other users of the highway would observe the rules of the road. That element might well have been included in the instruction complained of, but there was no prejudice to respondent, as another instruction told the jury that, if the operator, through no negligence on his part, was compelled to slow down or stop suddenly to avoid a collision with another vehicle, then the operator was not guilty of negligence.

In my opinion, there is no basis for a new trial on any of the grounds urged by the respondent, and the order granting a new trial should be set aside and the trial court instructed to enter a judgment on the verdict of the jury.

MALLERY and GRADY, JJ., concur with HILL, J.