(dissenting). I dissent. The judgment in this case seems to be reversed solely on the ground that the weight of testimony is in favor of the defendant. This is a case of a plain conflict of testimony. If the statement of plaintiff is true he ought to recover. According to his statement, Ismay, the superintendent, knew that the brake was defective, and gave him the defective stick to use, the breaking of which was the cause of the accident, and instructed him to use it as he did use it. He called the plaintiff from other work on which he was engaged and instructed him how to run the car down. The instructions *497were literally followed. The means supplied by the superintendent were used, and in literally following the instructions of his superintendent, and by reason of the defective means employed, he was injured.
It is true this statement was flatly contradicted by the superintendent and his son, a boy about the same age as the plaintiff, and the testimony of several other witnesses tended to contradict it. But it is too late in the history of jurisprudence to lay down the rule that the weight of testimony is to be ascertained by counting the number of witnesses who testify pro and con on a proposition, and to go still furthdf and hold it error for a. j ury to believe the testimony of one witness which was contradicted by the testimony of two or more witnesses; and yet this court, to reverse this case, must either yield its allegiance to this doctrine or the other equally fallacious one, that it is the duty of this court to constitute itself an appellate juiy and weigh the testimony and render a verdict upon the facts in the case.
My idea is, that the law, if it is to be administered with .any efficacy at .all, must be administered as a system. That has been the idea of the law makers, and they have promulgated a system conferring certain jurisdictions and powers upon courts, and conferring certain other jurisdictions, powers and provinces just as firmly upon juries. It is not intended that these powers should trench upon each other, and there is no occasion for them to do so. It is the duty of the court to announce and enforce the law governing the admission of testimony, and to see, under proper objection, that only legal testimony is admitted. It may even go farther and decide that as a matter of law certain testimony, if conceded to be true, would not constitute a defense, or would not sustain a judgment, but it has no more right to weigh testimony, or to pass upon the credibility of witnesses, or to say what testimony is prob*498able or improbable, or to say what circumstances are suspicious, than the jury has to usurp the functions of the court in construing the law, and to refuse to render a verdict for a plaintiff because in their judgment the complaint does not state facts sufficient to constitute a cause of action; for the law makes it the special and exclusive province of the jury to weigh the testimony and pass upon the credibility of the witnesses, for reasons which have been so often and so uniformly announced in the courts that it would be like citing elementary law to cite them here. Limy judgment the law cited by the majority from Thompson on Trials does not tend in any degree to sustain the opinion.
It is not contended by the majoi’ity that there was not sufficient legal testimony offered by the plaintiff to sustain the verdict, if it had not been disputed; but the bald contention is, that in the opinion of this court the jury was not justified in believing the testimony of the plaintiff, because it was contradicted by a large number of credible witnesses “who were unimpeached,” “and credible witnesses,” say the court, “cannot be set aside in this way and a verdict sustained on the uncorroborated testimony of a single witness, and he the party most interested. ’ ’
I am not aware of any law compelling the jury to believe the testimony of a witness because he has not been impeached, and I have always been of the opinion that the interest of the witness was a matter especially to be taken into consideration by the jury as affecting his credibility; but that there is no legal barrier to a jury believing him notwithstanding'his interest. If I am correct in this proposition, the presumption, then, is that the jury did take the witness’ interest into consideration, and that they exercised their legal right of believing him notwithstanding his interest. It is barely possible that the jury also considered the interest of the witness Ismay, who was a ser*499vant of the company, and who was alleged to have been the cause of the damage suffered; and if I should deem it worth while to enter into a discussion of the weight of the testimony, I might add that the record shows that the statement of the boy was corroborated, so far as the admission of the superintendent is concerned, that the accident was his fault, by the mother of the boy, and by the witness Striker, who testified that he was at the boy’s home when Ismay brought the boy home immediately after the accident, and that Ismay said to the boy’s father:
“It wasn’t the boy’s fault, Fred; it is my fault. I ordered the boy to take the car down and gave him a stick to take it down with, but the stick broke and made him fall forward in front of the car. ’ ’
Striker at least was a disinterested witness and was ‘ ‘ unimpeached. ’’ The jury had a legal right to believe his testimony, aud if it was true that Ismay made this admission at the time the accident occurred, it was very strongly corroborative of the testimony of the plaintiff at the trial on the main issue in the case.
But the very fact that the different members of this court, who were not present at the trial and who did not hear the witnesses testify, differ as to where the weight of testimony is, shows the wisdom of the law in submitting all questions of the credibility of witnesses to the jury to whom the evidence is personally addressed. And this has been the uniform holding of this court. In Noyes v. Pugin, 2 Wash. 653 (27 Pac. Rep. 548), this court said:
“The first contention of appellant is, that the evidence fails to show any employment of respondent by him, or that he ever requested the latter to perform the labor for which he now seeks compensation, and that the court below erred in not setting aside the verdict for insufficiency of the evidence. Upon that point both parties testified fully; and, there being a direct conflict between the testimony of plaintiff and defendant, it was for the jury to determine, *500under all the facts and circumstances before them, upon which side lay the preponderance of the evidence. ’ ’
In Lybarger v. State, 2 Wash. 553 (27 Pac. Rep. 449), we held that where there was sufficient evidence to sustain the verdict of the jury the supreme court would not pass upon the weight of testimony. In Graves v. Griffith Realty, etc., Co., 3 Wash. 742 (29 Pac. Rep. 344), the court said:
“The main contention here is, that the evidence did not support the findings. An appellate court in a law case will not usurp the functions of the jury, or of a judge acting in the capacity of a jury, and reverse the judgment because the weight of testimony seems to be on the other side, or because, in a case of conflict of testimony, the jury believed the testimony of witnesses that it does not believe. This doctrine is so elementary and'so universally announced by the courts that it would be idle to enlarge upon it or discuss it further. It is sufficient to say that the jury is the judge of the facts. If the testimony on which the judgment is based is competent, and is legally introduced, and if conceded to be true would sustain the judgment, the appellate court will not inquire further as to its sufficiency.”
In Puget Sound, etc., R. R. Co. v. Ingersoll, 4 Wash. 675 (30 Pac. Rep. 1097), we decided that “the verdict of a jury will not be disturbed where the testimony is conflicting, if there is sufficient evidence to sustain the verdict;” and in Brasen v. Seattle, Lake Shore, etc., Ry. Co., 4 Wash. 754 (31 Pac. Rep. 34), that “where there is sufficient legal testimony to support the verdict of the jury awarding-damages, the verdict will not be disturbed in the supreme court.” In Dillon v. Folsom, 5 Wash. 439 (32 Pac. Rep. 216), the court said:
“An examination of the record satisfies us that there was a substantial conflict in the testimony upon the main issue, and this being the case the verdict must stand. If this court should set aside verdicts upon the ground that in its opinion a preponderance of the testimony was in favor *501of the other side of the issue presented to the jury, there would be little use in jury trials. All this court will do in any case is to investigate the record so far as is necessary to see whether or not there was substantial testimony to support all the issues necessary to be found by the jury, and if such is contained in the record, the verdict will not be set aside for the reason that in its opinion there was a greater amount of testimony on the other side.”
In Booth v. Columbia, etc., R. R. Co., 6 Wash. 531 (33 Pac. Rep. 1075), the court, after announcing that a certain proposition was denied, proceeds to say:
“Whether or not it was successfully denied, is a question-for the jury to pass upon, and they have passed upon that question in favor of the contention of the respondents, and this court will therefore not presume to set aside their verdict, even though in its judgment the weight of testimony is in favor of the appellant.”
And in Burden v. Cropp, ante, p. 198, the language of the court is:
“The only question presented by the record in this case is that of the sufficiency of the evidence to sustain the verdict of the jury, and as we think that the testimony of the plaintiff’s witnesses, if believed by the jury, was sufficient to establish the cause of action set out in the complaint, it follows by well established principles that the verdict must be sustained, even although the testimony offered in opposition thereto is more satisfactory to our minds. It is not enough to authorize us to disturb the verdict of the jury that we should be of the opinion that the evidence upon the other side was entitled to a greater weight than that upon which the verdict seems to have been founded. It is enough if there was any evidence which, if uncontradicted, would be .sufficient to establish all the facts necessary to sustain the complaint of the successful party. ’ ’
The decisions cited above have been concurred in by every member of this court, and they have been so uniform, so clear and so pointed that the bar of the state had *502a right to rely upon them in the preparation of their briefs in this court; and the brief of the respondent in this case convinces me that they did rely on the law in that respect being settled, and therefore did not discuss the question upon which the case is reversed, but devoted their brief to the discussion of law points involved, upon which the majority seems to sustain them.
I know of no good reason why this court should leave the well beaten path which it has heretofore so uniformly trodden, in company with every other appellate court, and start out on another road which, in my judgment, it cannot occupy without a plain usurpation of the province of another tribunal; without in effect denying a constitutional right to the citizen, and' without bringing about the unfortunate disturbances which always follow the unsettling of a well established principle. The judgment should be affirmed.
Scott, J., concurs.