(concurring specially) — I find myself in disagreement with the basis on which the majority decide this case.
*421The majority rely on faulty maintenance. The reasoning is that corrosion, which produced the pitting which caused the axle to break, was caused by moisture in the housing. The moisture was there because the housing was inadequately sealed. This, the majority say, raised a presumption of negligence that the defendant’s employees were guilty of negligence in maintaining the axle housing; and, it is said, that we must hold, as a matter of law, that the defendant failed to overcome that presumption of negligence.
It seems to me that the majority has confused the situation by attempting to rely on a specific act of negligence in a res ipsa loquitur case and then to apply the res ipsa loquitur rule. (I should add that I do not agree that the rule is as stated.)
It is hornbook law that a plaintiff may rely both on res ipsa loquitur and on a claimed act or acts of negligence in support of his right to recover. Vogreg v. Shepard Ambulance Ser. (1955), 47 Wn. (2d) 659, 289 P. (2d) 350; Kemal-yan v. Henderson (1954), 45 Wn. (2d) 693, 706, 277 P. (2d) 372; Morner v. Union Pac. R. Co. (1948), 31 Wn. (2d) 282, 196 P. (2d) 744. In the Kemalyan case it is said:
“We have on a number of occasions held that a plaintiff can allege and attempt to prove specific acts of negligence on the part of defendant and still rely on res ipsa loquitur, and especially so when the allegation of specific acts of negligence is coupled with a general allegation of negligence on defendant’s part. Covey v. Western Tank Lines, supra; Morner v. Union Pac. R. Co., supra; Mahlum v. Seattle School Dist. No. 1, supra; Case v. Peterson, supra, and Highland v. Wilsonian Inv. Co., 171 Wash. 34, 17 P. (2d) 631. This rule is subject to the qualification (already mentioned) that if plaintiff’s evidence goes so far as to fully explain the cause or causes of the accident which injured him, he loses the right to rely on res ipsa, but an unsuccessful attempt to prove specific acts of negligence on the part of defendant does not deprive plaintiff of his right to rely on res ipsa. Covey v. Western Tank Lines, supra.”
It is clear, however, that if a specific act or omission is established as the sole proximate cause of the event which occasioned the plaintiff’s injuries, it ceases to be a res ipsa case, and the issue is: Did the act or the omission constitute *422negligence. Hufford v. Cicovich (1955), 47 Wn. (2d) 905, 909, 290 P. (2d) 709, Vogreg v. Shepard Ambulance Ser., supra; Kemalyan v. Henderson, supra; Morner v. Union Pac. R. Co., supra.
I shall discuss the majority opinion both from the standpoint of reliance on a specific act or omission, and from the standpoint of res ipsa loquitur.
A Specific Act or Omission: If the negligence (faulty maintenance, i.e., the failure to adequately seal the housing) was conclusively established and it was further conclusively established to be the proximate cause of the breaking of the axle, the court should say so, and there is no necessity to talk about a presumption of negligence. In that event, liability being established, the only issue that should have been presented to the jury was the amount of damages. While I agree that on this basis the judgment could be affirmed, I do not believe that either the negligence or the proximate cause was conclusively established.
If (a) whether the housing was adequately sealed, or (b) whether such failure to adequately seal the housing was a proximate cause of the accident, were jury questions, then the issues of negligence and proximate cause should have been submitted to the jury under proper instructions. As I read the instructions, the case was never presented to the jury on these issues, nor was there any request that it be so presented.
Res Ipsa Loquitur: If this is a res ipsa case, and went to the jury because a permissible inference of negligence could be drawn from the circumstances surrounding the breaking of the axle (which would include the presence of moisture in the housing), the so-called “presumption of negligence” of which the majority opinion speaks (using the language of our earlier cases1) is, as stated in our later *423cases, a permissible inference of negligence. Chase v. Beard (1959), 55 Wn. (2d) 58, 346 P. (2d) 315.
Such an inference of negligence will support a verdict for the plaintiff, but does not, except under exceptional circumstances,2 require one.
If the majority are saying here that the inference of negligence is so strong in this case that the jury (i.e., all reasonable minds) must find for the plaintiff, I would disagree, because I see no more than a jury question.
With all of my disagreement with the theory and reasoning of the majority, I arrive at the same conclusion.
As I see it, this is a res ipsa loquitur case. All of the circumstances (including the presence of moisture in the housing) raised an inference of negligence which was the proximate cause of the breaking of the axle, and carried this case to the jury.
The appellant chose to introduce evidence concerning its inspection procedures in an effort to meet that inference and to establish that it exercised all the care compatible with the practical operation of its business.
On this appeal the appellant argues that it established, as a matter of law, that it exercised the highest degree of care compatible with the practical operation of its business. This argument is in two parts:
One: It argues that it complied with all of the precautions prescribed by the uniform practice of those engaged in like or similar business activities. This the majority opinion meets squarely by showing that in this jurisdiction such uniform practices are admissible in evidence on the issue of negligence, but are not conclusive of the proposition that there was no negligence.
Two: It argues that the cost of inspection of such frequency as would prevent an event such as the breaking *424of the axle, which occurred here, would be so prohibitive as to be incompatible with the practical operation of its business. It is this latter proposition that the majority assumes, without deciding.
I would decide it, saying that the evidence is not sufficiently conclusive under all the circumstances (which includes the moisture in the housing) to make it possible to say, as a matter of law, that the defendant exercised the highest degree of care consistent with the practical operation of its business. Whether it did, or did not, was a jury question; and, under an instruction quite favorable to the defendant,3 the jury must have found that the defendant did not exercise the highest degree of care consistent with the practical operation of its business; and, therefore, I would affirm the judgment.
Weaver, J., concurs with Hill, J.
March 27, 1963. Petition for rehearing denied.
It is conceded that the cases cited by the majority (all prior to 1932) speak of a “presumption of negligence”; and that a small minority of state courts and some authorities including Prosser (see 37 Cal. L. Rev. 183) take the position that in carrier-passenger cases, the burden should be on the carrier to prove that there was no negligence when a passenger is injured.
My view is that we should continue, with most courts and author*423ities, to take the position that res ipsa loquitur principles should apply to such cases; or, if we are to abandon them, clearly state that we are doing so and why.
“Such a circumstance would be a collision by trains of a carrier upon tracks under its exclusive control; in short, where absent any explanation by the defendant, reasonable minds cannot reach any conclusion but that the defendant must have been negligent.
“Under the law of this state, a railroad, in the maintenance and operation of its equipment, is required to exercise the highest degree of care consistent with the practical operation of its business. As such, it is required to inspect its equipment for defects, and if it neglects this duty it is liable for injuries to passengers resulting from such defects which reasonably could have been discovered by such inspection. However, a railroad will not be liable for injuries arising from hidden defects in its equipment which could not be discovered in the exercise of that degree of care required of it as I have previously defined it to you.
“Therefore, if you find from the evidence that the axle failure of the Milwaukee dining car occurred because of defects in the axle which could not have been discovered by the Milwaukee in the exercise of that standard of care the law imposes upon it, then your verdict must be for the defendant.” (Instruction No. 5)