The order granting a new a new trial to Safeway Stores, Inc., presents simply the question as to whether the rule stated in instruction No. 11 is applicable to the situation developed at the trial. The rule stated is well recognized and often invoked in this jurisdiction. Harold v. Toomey, 92 Wash. 297,158 P. 986; Glasgow v. Nicholls, 124 Wash. 281, 214 P. 165, 35 A.L.R. 419; Lenover v. Beckman, 142 Wash. 98, 252 P. 533;Bank of Chewelah v. Carter, 165 Wash. 663, 5 P.2d 1029;Warren v. Bowdish, 166 Wash. 217, 6 P.2d 593; Bond v.Werley, 175 Wash. 659, 28 P.2d 318; Gaskill v. Amadon,179 Wash. 375, 38 P.2d 229; Yakima First Nat. Bank v. Pettibone,182 Wash. 663, 47 P.2d 997.
In Rosenstrom v. North Bend Stage Line, 154 Wash. 57,280 P. 932, the rule is stated:
"In instances where the witness is an actor in the transaction which gives rise to the controversy, and is presumably favorablydisposed towards one of the parties and that party does notproduce him as a witness, it is presumed that his testimony, ifproduced, would be unfavorable to him. (Italics mine.)
Now, in the light of the rule as thus stated, let us examine the facts to see whether the rule was properly invoked by the instruction given by the court *Page 354 which, upon motion for new trial, it conceived to be erroneous.
Plaintiff testified that her fall was caused by the accumulation of oil in depressions in the floor in or near a passage-way through which she had to pass. To rebut this testimony, defendants called only two witnesses — Brandes, the store manager, and Weiuman, the assistant manager. From their testimony, it appears that the floor is never oiled except on a double holiday; that there was no fresh oil on the floor on Saturday, September 3rd, the day the plaintiff fell; that the last time the floor was oiled prior to that was the double holiday that came with the Fourth of July; that the floor was again oiled on the evening of September 3rd, the following Monday being Labor Day; that five persons worked in the grocery department on Saturdays; that, on evenings when the floor was oiled, it was customary for the manager to check up the day's receipts, and at least two men arranged the produce in the produce department, "and the remainder of the crew would work on the oiling operation."
Now, from this testimony, it appears that there were three persons besides Brandes and Weiuman in the employ of the defendant corporation at the time plaintiff fell, who, of necessity, knew whether or not there was fresh oil on the floor — whether or not the floor had been oiled since July Fourth. It seems to me they were essentially "actors in the transaction" in the oiling of the floor. The oily condition of the floor was the issue upon which liability turned; and the time it had been last oiled prior to September 3rd was of the essence of the issue. Yet, defendants did not see fit to call them as witnesses or explain their absence.
Upon these facts, I think, under the rule as stated *Page 355 in the Rosenstrom case, it was incumbent on the defendant corporation to take one course or the other if it wished to escape the inference that, if called, their testimony would be unfavorable to it. The situation developed here is essentially no different from a situation where the motorman or conductor of a street car or the owner or driver of an automobile, involved in a collision, is not called nor his absence explained. See Mitchellv. Tacoma R. Motor Co., 9 Wash. 120, 37 P. 341; Lenover v.Beckman, 142 Wash. 98, 252 P. 533, supra.
I dissent.
MAIN, MILLARD, and DRIVER, JJ., concur with BLAKE, J.