The questions of fact in this case are (1) What caused the lights on the truck to go out? (2) If caused by a broken or loose wire or loose connection, could such defect have been discovered by reasonable inspection? and (3) Was such inspection made by the respondent?
The only evidence produced by appellant on these questions of fact was the testimony of himself and that of the witness Missler. Appellant's testimony upon these factual phases of the case is comprehended in the following excerpt quoted in his brief:
"Q. And from your experience with equipment of the sort that was involved here what would or could cause the headlights to fail in the manner that they did and go out? A. Well, a loose or a broken wire would put them all out. Q. And anything else? A. Well, the bulbs will burn out. There is hardly ever they will all burn out at the same time without some other cause. Sometimes a broken wire or a loose wire will do it or a loose connection. Q. Any other cause that might enter into it? A. None that I can think of right now. Q. And all of these things, according to your experience *Page 153 with and knowledge of these vehicles, could those be detected by a shop inspection? A. I think they should. Q. Is there anything hidden about a defect of that sort, a loose connection or a loose wire or anything like that, that could not be detected by reasonable inspection? A. I think not."
The substance of this testimony is that a loose or broken wire would put out the lights, and that, possibly, all the bulbs might burn out at one time; that appellant could think of no other cause; that appellant also thought that such matters could be detected by reasonable inspection. At best, this testimony was conjectural.
The witness Missler testified that, a few days before the accident, while he was operating the same truck, all the lights went out at once as the result of a short circuit in the light-wiring, that he had made an emergency repair and had reported the trouble to the Portland shop at the end of his run.
I will assume, as the majority asserts, that this evidence, taken together, would withstand a challenge to its sufficiency at the close of appellant's case.
The majority opinion then recites the evidence introduced on behalf of respondent, and concedes that, if taken at its face value, it could be well said, as a matter of fact, that respondent had fulfilled its "duty of reasonable inspection." It is said, however, by the majority that it could not be held, asa matter of law, that respondent had discharged its duty because, in order to reach that conclusion, it was necessary to pass upon the credibility of four witnesses for respondent, and that this was a function of the jury.
While it is not specifically so stated, the inference to be drawn from the majority opinion is that respondent's four witnesses were its own employees, and that, therefore, the jury was not required to believe them. The fact is, however, that the witness Stockman was *Page 154 not in the employ of respondent at the time of the trial and had not been for two and one-half years prior thereto. He had, in the meantime, been engaged for awhile in operating his own shop and, at the time of the trial, was assistant superintendent on a W.P.A. project, being in full charge of all trucks and equipment. He was, therefore, a disinterested witness.
Touching Stockman's qualifications as a mechanic, the record discloses that he had had three shops of his own, had been shop foreman for Studebaker Corporation in Portland for five years, had been with the Dodge and Plymouth dealers for some time, and had also worked for White Truck Company and Consolidated Freight Lines. His experience was in no way disputed.
Stockman testified in detail as to the specific repairs that were made on the truck on October 4th, which was two days before appellant started upon the particular trip. Regarding the inspection that was made after the repairs had been completed, he testified as follows:
"Q. What was the condition of the lighting equipment after those repairs were completed? A. Well, after I got through working on it it was all completed, all fixed up; everything was o.k. Q. And what inspection or what checking did you do after that to determine that they were in proper shape? A. We checked all the wires and checked all the lights, hit them, tapped them, to see if there was any loose connections any place; also tightened the connections in the head lamps, the sockets."
He further testified, on cross-examination, that the inspection which he had made was all that could be made.
There was no evidence contradicting Stockman's testimony that the repairs and inspection had been made, and no evidence that the inspection made by him was not a reasonable one. If there had been any *Page 155 question as to the sufficiency of the inspection, appellant could undoubtedly have obtained experts galore to so testify. But appellant himself did not even contradict the testimony thus given by Stockman.
It is worthy of note, also, that, at the time when the lights went out, appellant had been driving the truck for eight and one-half hours and had then covered a distance of one hundred and ninety-four miles. The fact that the lights then suddenly went out is no proof that a reasonable inspection had not been previously made.
With positive and uncontradicted evidence from a disinterested witness as to the fact of inspection and its reasonableness, there was nothing for the jury to pass upon, and, since those issues were the determinative features in the case, the jury could not have been permitted to disregard such evidence and render a speculative verdict.
The court was right, I think, in determining the question as a matter of law. I therefore dissent. *Page 156