(dissenting) — I concur in the foregoing opinion, in the main, but cannot approve of an instruction that the burden of proof is on the defendant to show a want of negligence, by a fair preponderance of the testimony, in cases *369where the doctrine of res ipsa loquitur applies. Such an instruction is inherently and fundamentally wrong. The presumption of negligence which arises from the mere happening of an accident in this class of cases is a mere presumption of fact. Its weight will vary according to the circumstances of each individual case and is wholly for the jury. The distinction between the burden cast upon the defendant to explain the cause of an accident, or exculpate himself from the charge of negligence, and the burden of proof on the main issue in the case, is clearly pointed out in Chaperon v. Portland Elec. Co., 41 Ore. 39, 67 Pac. 928, cited in the maj ority opinion, where the court said: “This burden should not be confused with the burden of making the better case as between the plaintiff and defendant. The plaintiff must have made the better case in the end by the preponderance of evidence. 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 stronger and more satisfactory.” In other words, when the- proof is all in, the jury must be satisfied from the entire testimony that the charge of negligence is established by a preponderance of the evidence, for, if not, the plaintiff fails in his action. This rule is so elementary that I deem further discussion unnecessary. Nor can it be said, as a matter of law, that an instruction which imposes the burden of establishing a cause of action or defense, by a preponderance of the testimony, on the wrong party, is not prejudicial.